“Since the beginning of Wisconsin’s Covid-19 response we have repeatedly witnessed an uneven leadership from Governor Tony Evers and DHS Secretary-Designee Andrea Palm in regards to their use of public health orders. In early March, they utilized modeling developed by DHS with dire projections of cases and deaths to justify enactment of harsh restrictions on the people and businesses of Wisconsin. That model was proven to be flawed since it relied heavily on questionable data from China and Italy.
Each passing week, Secretary-Designee Palm increasingly stoked fears in her briefings of pending and unavoidable spikes in Covid-19 cases statewide, even though actual data on Covid-19 has been stable and the so-called “curve” has flattened.
Governor Evers and DHS have shown no concerns regarding the highly negative impacts of their orders on the economy and the ability of the public to access health care treatments for other serious medical concerns. That lack of addressing broader health care access for non-Covid-19 issues in fact jeopardizes the health of many citizens in need of care.
[Thursday], Governor Evers and Secretary-Designee Palm extended the order but claimed there were significant loosening of the rules. However, upon closer inspection of the new order it has key parts that are in reality tightening of the current rules for many businesses. The new order even seems to encourage local governments to close their parks and public spaces if a small number of citizens don’t cooperate.
It is now abundantly clear that Governor Evers’ administration will not act reasonably in developing a phased plan to safely reopen Wisconsin without being forced to by the people, the legislature and the courts.
I recommend the following actions should be taken in response:
1.) Impacted citizens, businesses and the legislature should consider filing lawsuits challenging elements of the order and the constitutionality of provisions of Chapter 252 of the Wisconsin Statutes (the power of DHS and local health departments to issue public health orders).
2.) An extraordinary session of the legislature should be convened to pass legislation limiting the expansive powers of the DHS and local health departments in issuing public health orders without proper justification and a process for reasonable legislative oversight and ability to end orders by joint resolution.
3.) During the same extraordinary session the State Senate should consider the executive appointment of Andrea Palm as DHS Secretary and reject it.
4.) Call upon Governor Evers to work with the legislature to craft a plan to address public health in response to Covid-19 and safely reopen Wisconsin utilizing CDC guidelines on social distancing, operation of businesses, K-12/higher education and churches/religious entities. The plan should prioritize compliance with constitutional limitations on government, provide the necessary Covid-19 testing resources and enhancing the supply of PPE.”
In these unprecedented times, citizens and business across our state have been drastically impacted by the government shutdown of our economy during the COVID-19 crisis. However, the Executive Branch does not have unchecked authority in such a crisis. To impair fundamental rights – as gathering bans, etc. do – the government must have a compelling state interest to do so AND must do so in a narrowlytailored and least restrictive means possible under the constitution. Without additional clarity by the executive branch, it is clear that this authority has been exceeded. During this and future times of crisis, the people of Wisconsin need the surety, specificity, and constitutional consideration that would come from actions of the Legislature done in coordination with the Executive Branch. In an effort to alleviate the uncertainty surrounding the cascade of Emergency Orders and the negative impacts they have had on our fundamental civil liberties and the state’s economy, I am introducing legislation to provide legislative oversight of the Executive Branch during times of emergency or pandemic. The measures include: – Requiring legislative approval of any statewide “shelter-in-place” order for reasons of pandemic or infectious disease – Requiring legislative passive review of any “Emergency Declaration” after 30 days, with affirmative approval needed for a state of emergency lasting longer than 60 days – Requiring a written report detailing the satisfaction of strict scrutiny concerns be given to the legislature prior to a ban of gatherings of 50 or fewer is to be in effect – Requiring an immediate report to the legislature of arrests for mass gathering violations These are measured and appropriate checks which re-assert the Legislature’s role in establishing the appropriate, constitutionally-required balance between public safety, economic impact, and constitutional rights in times of emergency.
Remember when legislators were concerned about the role of the legislative branch in balance of power in government? Notice how silent Democrats in the Legislature have been about their governor’s usurping power? (Republicans didn’t bring that up either under Gov. Scott Walker.)
Palm needs to go, and Evers and whoever replaces Palm needs to be reigned in. No one elected a DHS secretary — or, for that matter, county health departments — to have dictatorial power.
As we complete the fourth week of lockdown, many Wisconsinites are wondering how long this extraordinary state of affairs can continue and how it might end. And what happens if the Governor and Legislature cannot agree on what happens next?
These questions were given fresh urgency [Thursday] after DHS Secretary-designee Angela Palm unilaterally determined that the “Safer at Home” order would continue through May 26, 2020, beyond the expiration of the Governor’s emergency declaration. But does the Evers administration really have the authority to order the widespread closure of churches, schools and businesses for another month without legislative input?
The following is an analysis of whether the Governor has that authority. While a stay-at-home order is subject to various constitutional limitations, it does not address what particular combination of legally permissible social-distancing provisions would be best.
Wisconsin under a Public Health Emergency
On March 24, Governor Evers issued Emergency Order #12, the so-called “Safer at Home” Order. The Order currently expires on its own terms at 8:00 a.m. on Friday, April 24, 2020, and cites two sources of legal authority. While it is on the joint letterhead of Governor Evers and Secretary-designee Andrea Palm, the Acting Secretary of the Department of Health Services (“DHS”), it is signed solely by Secretary-designee Palm, who claims the authority under Wis. Stat. 252.02(3) and (6). The Order also relies upon Governor Evers’ Executive Order #72 (declaring a public health emergency).
Then, with the expiration of Order #12 looming, on April 16, 2020, Secretary-designee Palm issued an updated version of the Order, Order #28, which takes effect upon the expiration of the first order and is itself set to expire at 8:00 a.m. on Tuesday, May 26, 2020. Like Order #12, Order #28 is on joint letterhead and signed solely by Secretary-designee Palm. Unlike Order #12, however, it does not rely on Governor Evers’ Executive Order #72; it relies on Wis. Stat. 252.02(3), (4), and (6).
The legal authority of Governor Evers and Acting Secretary-designee Palm
The Governor’s Emergency Declaration. Governor Evers issued Executive Order #72 on March 12, 2020. In that Order, he declared that a public health emergency existed in Wisconsin due to COVID-19 and designated the Department of Health Services (DHS) as the lead agency to respond to this emergency. Once an emergency is declared, the Governor has apparently broad power under Chapter 323 of our statutes. For example, Wis. Stat. 323.12(4)(b) says that, upon the declaration of a state of emergency, the Governor may issue “such orders as he or she deems necessary for the security of persons and property.” But these powers are not as extensive as they might first appear to be. They are subject to limits imposed by the state constitution and may be construed narrowly by the courts. For example, the Wisconsin Supreme Court recently held that Chapter 323 does not authorize the Governor to rewrite or suspend statutes and, therefore, ruled that he may not postpone an election set by state statute. Wisconsin Legislature v. Evers, Case №2020AP608-OA (Wis. Apr. 6, 2020)
In addition, declarations of an emergency have a shelf life. They may continue for sixty days unless they are revoked by a joint resolution of the Legislature. They may be extended beyond those sixty days only by a joint resolution of the Legislature. In other words, the emergency can be ended by the Legislature at any time and can continue after sixty days only if the Legislature votes to extend it. For this reason, the emergency declared by Executive Order #72 will end on May 11, 2020. Unless the Legislature passes a joint resolution extending the emergency, the Governor’s emergency powers under Chapter 323 will expire. The second Safer at Home order appears to recognize this fact; gone is any reliance on authority provided under Order #72.
DHS Powers Under Chapter 252. But that is not the end of the matter. As noted earlier, Order #12 ordering Wisconsin residents to stay home subject to certain sections also invokes powers granted to it by Sections 252.02(3) and (6). And Order #28 adds reliance on 252.02(4).
Section 252.02(3) states that “[t]he department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics, and Section 252.02(6) states that “[t]he department may authorize and implement all emergency measures necessary to control communicable diseases.” Finally, sub. (4) authorizes Secretary-designee Palm to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises.”
The powers of DHS without a Public Health Emergency declaration
To begin, we must engage in some close legal reasoning. Courts must construe the powers conferred on the Governor by Chapter 323 and those conferred by on DHS by chapter 252 together. They cannot read one (chapter 252 giving DHS the power to, among other things, forbid public gatherings) in a way that renders the other (chapter 323 giving the Governor the power to declare a public health emergency) superfluous. If chapter 252 allows a gubernatorial appointee (Secretary-designee Palm) to do everything that the Governor can do under Chapter 323, only without the limits imposed on the declaration of a public emergency, then Chapter 323 becomes meaningless. That won’t happen.
So, we begin with at least a very strong presumption that the powers conferred by Chapter 252 are different than those authorized by Chapter 323. What might that mean? We have almost no case law construing these statutes. But if the Legislature ends the state of emergency, it is reasonable to conclude that DHS would lose its powers under section 252.02(6), since that section only refers to “emergency” measures. In fact, DHS may also lose its authority under section 252.02(3) and (4) to close schools and forbid public gatherings and the like because, even though those provisions do not reference an “emergency,” it would make no sense to grant broader powers to DHS than to the Governor. In addition, if there is no longer a public health emergency, there is no longer a legal basis to conclude that closing schools or forbidding public gatherings or issuing similar orders is required to “control outbreaks and epidemics” or to “control and suppress[] . . . communicable diseases.” Whether the Legislature would be correct to decline to extend the public health emergency is a different question. It is a matter of policy and not law which courts are very unlikely to second guess.
Thus, the bases for the Safer at Home Order (or any similar order) would likely not survive an end to the Governor’s emergency declaration.
Second, even if it could be argued that DHS’s powers under Section 252.02(3)-(4) could survive the Legislature’s refusal to extend a state of emergency, there would still be significant constitutional and statutory limitations on what DHS could lawfully do.
Let’s begins with limits imposed by the statute itself. Under sub. (3), DHS’s powers are specifically limited to closing schools and forbidding “public gatherings in schools, churches and other places.” Closing schools is relatively straightforward but what is a “public gathering?” The statute doesn’t tell us and the term has not been considered by the courts. At minimum, it cannot apply to small groups of friends and family.
Nor does it seem likely to apply to the operation of many businesses. Patronage of a retail store or business providing personal services would not normally be considered a “public gathering.” The functioning of an office or a factory would not typically be called a public gathering. A landscaper or painter coming to a home does not create a public gathering. In addition, under standard rules of statutory construction, the “other places” referred to must be places like schools and churches. Residences and private businesses are not in that category.
While counter-arguments can and will be made, it seems likely that, even if Secretary-designee Palm can continue to issue orders under Chapter 252 after Governor Evers may no longer issue them under Chapter 323, the public gatherings that she can forbid are likely to be limited to large assemblies.
At first glance, sub. (4) might appear to be a more open-ended grant of authority in terms of what it allows Secretary-designee Palm to regulate. But the power delegated by sub. (4) is bounded by the requirement that Secretary-designee Palm “promulgate and enforce rules or issue orders.” The promulgation of a rule involves substantial legislative oversight and an opportunity for public comment. And it would be absurd to allow Secretary-designee Palm to circumvent these safeguards by simply issuing orders. Consequently, the ability to issue an order is best read to allow Secretary Palm to enforce compliance with existing laws or rules, not to create new administrative powers out of whole cloth. In addition, the provision permitting DHS to take steps “for the control and suppression of communicable diseases” must itself be read consistently with sec. 252.03 and, to the extent that DHS seeks to forbid assemblages of persons, it may not go beyond the limitations implicit in the latter section.
Constitutional limits on emergency powers
That’s just the statutory analysis. In addition, any order issued by either Governor Evers or Acting Secretary-designee Palm are subject to constitutional limitations. As a general matter, the interest that the government seeks to advance must be balanced against the restriction on liberty and must be sufficiently narrow. That balancing will be most exacting when a restriction — here the forbidding of a public gathering, for example — burdens a fundamental constitutional right such as the freedom of speech and assembly, the right to worship, and the ability to maintain family relationships. Closing of schools in a way that impairs the right to a free and uniform public education may also be more closely scrutinized. Other fundamental rights may be implicated as well. This judicial scrutiny will ask not only if some restriction is warranted, but also whether the particular restriction is narrowly tailored to what is necessary to control the spread of the virus.
While courts will be more deferential to restrictions on public gatherings that do not implicate fundamental rights, the state will have to offer some justification. Whether a fundamental right is implicated or not, as time goes on, the underlying circumstances of the pandemic may limit whatever authority DHS retains. For example, when the Safer at Home Order was issued the number of COVID-19 cases in Wisconsin was rising rapidly. That is no longer true. Per the graph published by the New York Times on April 16, 2020, the curve in Wisconsin has flattened and even bent downward:
Whether or not the trend in the spread of the virus is due to social distancing or what turned out to be an overly pessimistic view of the virus’ likely course, the situation on the ground will eventually impact the constitutional analysis. While this may not be true today — courts are likely to be broadly deferential — a continuation of what seems to be the current trend will matter.
Finally, something must be said about the Legislature’s ability to delegate authority to Secretary-designee Palm and the Department of Health Services. Under what is known as the nondelegation doctrine, the Legislature may not simply give away its legislative power to an executive branch agency. It must either provide strict standards on its exercise or adequate procedural safeguards to ensure that the agency does not become a miniature Legislature. DHS’ ability to issue sweeping orders only vaguely authorized by broadly-worded statutes is far from clear.
Conclusion
My purpose here is not to suggest what “should” happen in the coming weeks. That question is separate from the legal analysis which goes to who decides and what constitutional limits they face. Nor is this a law review article or a brief to a court. I have provided a broad and general summary about which more can and will be said. But claims that the Governor — or his appointee — can unilaterally extend the current state of affairs indefinitely may very well be wrong. If that’s so — and I think it is — then the next phase of Wisconsin’s response to the virus not only has to comport with our Constitution, but has to be agreed to by the Governor and the Legislature. It has to enjoy bipartisan support. And in extraordinary times such as these, that is how it should be. Unfortunately, Governor Evers’ new Safer at Home Order eliminates that possibility.
None of these are questions the state media have been asking. The state media has been a giant steaming heap of failure during the coronavirus crisis, failing to ask such Journalism 101 questions as “how” and “why,” and failing to question premises.
The creator of the video mispronounced the last name of Jaqueline “bis-SET,” but otherwise the video is entertaining since it includes the key Lalo Schifrin music.
Another video compares the 1968 locations to today:
Apparently the best car chase in the history of entertainment …
Hundreds of demonstrators lined the streets around the Michigan Capitol Wednesday for a rally to protest Gov. Gretchen Whitmer’s stay-at-home order, which aims to protect public health during the coronavirus pandemic.
Several of the vehicles participating in “Operation Gridlock” sported American flags and MAGA (Make America Great Again) banners. A banner across the Capitol lawn read “Security without liberty is called prison.”
Drivers laid on their horns repeatedly for hours ahead of the event, and others had megaphones. About 400 vehicles filled Allegan Street, which runs along the Capitol, for at least four blocks. Hundreds of other vehicles crowded other Lansing streets.
Michigan State Police troopers will only take enforcement action, traffic or otherwise, in the case of vandalism or if there is a threat to human life, said Lt. Brian Oleksyk, public information officer for the State Police’s First District.
“Our goal is to provide a safe and secure environment for visitors to the Capitol while also protecting the Capitol complex as well as the governor’s residence,” Oleksyk said. “We’re trying to do that while protecting the First Amendment rights of people attending the event.”
Shortly after 3 p.m., Michigan State Police responded to an altercation among protesters at Michigan and Capitol avenues but it was quickly dispersed, said State Police Lt. Darren Green. An individual was led away from the scene, and there was one arrest, Green said.
Around that same time, police began to create makeshift barricades with their bicycles at crosswalks in front of the Capitol to discourage individuals from blocking traffic.
Mike Vennix, 58, of Kalamazoo was among dozens of protesters who got out of their vehicles and gathered in front of the Capitol.
Asked if he had ever seen anything like the demonstration, he said no.
“Not like this,” he said. “This is great stuff.”
Like others, Vennix argued that Whitmer should let more people return to work and lift restrictions on public outings. But many health officials have backed Whitmer’s policies, arguing they will prevent hospitals from being overwhelmed.
“People can make up their own minds and play it smart as far as what we’re faced with,” Vennix said.
House Speaker Lee Chatfield, R-Levering, joined protesters by waving American flags from the first floor windows of his Capitol office. He argued the governor should be allowing reasonable changes to the stay-home order to allow people to start returning safely to work.
“My only goal is hopefully to ensure that government does hear them,” Chatfield said. “I know I’ve heard them. I have their back and I want to do all I can to ensure their constitutional rights are protected and they can get their livelihoods back and take care of their families.”
Todd Harden of Flushing was one of a few counter protesters at the rally, carrying a neon sign that said “We back ‘that woman,’” a reference to a remark by President Donald Trump in which he referred to Whitmer as “the woman in Michigan.”
Whitmer is a “smart lady,” Harden said, but he predicted she would likely “come down a notch” on some restrictions associated with the stay-home order.
“I always thought she was top notch and I believe in her decisions,” he said. “I just want a little more quiet quarantine time.”
It would be interesting to know if Harden is presently employed or not.
Several physicians also came to Whitmer’s defense in a Wednesday statement, including Michigan State Medical Society President Dr. Mohammed Arsiwala who said physicians “are still in the middle of the battle.”
“This cannot and will not go on forever,” Arsiwala said. “We continue to work to put the needs of patients first while supporting physicians in protecting their personal health and the financial health of the many medical practices that have been shuttered during this time.”
Denny Bradley, 33, of Jackson carried a yellow sign that read, “I want to work.”
The auto supplier that employs him has been shut down since March 24, Bradley said. And he is the lone source of income for his family.
On whether he was concerned about catching the virus during the event, he responded, “I think that the curve has turned and I am just not afraid.”
As of Wednesday, Michigan had more than 29,000 confirmed cases of COVID-19 with over 1,900 deaths. The state ranks among the top four nationally for both cases and deaths and has been labeled a “hot spot” by federal health officials.
In contrast, Wisconsin as of yesterday has 3,721 cases and 182 deaths.
The Wednesday protest is organized by the Michigan Conservative Coalition, which told supporters to “come ready for a potentially major traffic jam around the (taxpayer-funded) Michigan Capitol Building.”
A press release from the group warned attendees to “display signs, make noise and be disruptive, but stay in your vehicle so that the ‘Whitmer police’ cannot say you are ignoring the ‘social distancing’ order.”
Dozens of people milled about with signs and flags on the sidewalk in front of the Capitol despite the directive.
One person wearing a medical mask stood on Allegan Street and waved a Confederate flag early on in the protest.
A sign on a vehicle said, “Free us from tyranny.” Two men carried another sign in the street that read, “Recall Whitmer.” And writing on the back of a white Suburban said, “essential home school field trip on freedom/liberty.”
Her order also does not include updated guidance from the federal government that would have allowed more people in certain professions to work during the crisis.
Another participant in Wednesday’s protest, Erik Lane of Grand Rapids, argued that Whitmer should be quarantining the sick instead of forcing the majority of people to stay inside their homes.
“Quarantine the high risk and let the low-risk people work,” Lane said.
But health officials have supported Whitmer’s restrictions.
Last week, Stephen Hawes, an epidemiology professor at the University of Washington, cautioned that lifting population-based interventions, such as the stay-at-home order, too early may result “in future upticks” in COVID-19 cases.
Also not asked of health officials is how they feel right now about having this much power over our lives and when they intend to give it back. For people like Dr. Anthony Fauci and (unqualified) state Department of Health Services secretary-designee Andrea Palm, they’ve never had this much power in their lives, and you can bet your next stimulus check they won’t give it back without force.
Apparently there are plans for a similar protest at the State Capitol in Madison Friday, April 24 at 1 p.m. Check the Facebook group.
Times were tough down on the farm before the COVID-19 outbreak. Now, each new day is filled with dread, filled with collapsing markets, looming bankruptcies and ruined lives.
“At this point, we’re all looking at a train barreling over a cliff, not really sure if anyone is going to survive when we hit the bottom,” Brodhead-area farmer Rob Riemer told Vicki McKenna this week on NewsTalk 1310 WIBA.
The pasture-raised cattle and egg Riemer Family Farm dates back nearly a century. The third generation now wonders if their southcentral Wisconsin farm will survive the coming months.
The pandemic and Gov. Tony Evers’ sweeping Safer at Home order locking down much of Wisconsin has hit America’s Dairyland particularly hard.
Dan Smith, president and CEO of Cooperative Network, said the agriculture industry in general was just beginning a slow recovery from a painful downturn over the last four or five years. The severity of the coronavirus shutdown of the economy at large was like “pouring gasoline on a fire,” Smith said.
Overnight, the dairy industry lost about 40 percent of its marketplace — the food service industry. A big chunk of that market includes schools, which began closing en masse a month ago. Markets instantly changed, as Evers ordered most consumers to stay home. Food processors couldn’t turn on a dime to meet the changes, and everything seemed to slow to a crawl.
Riemer said last year was bad enough. His farm suffered a “six-figure loss.” The reserves are gone. Now, if the economic shutdown continues, his family farm, like so many family farms, won’t make it.
“We’re just talking a matter of months basically. Most of us will probably survive a month or two, some will not. But if this goes on extended, by the end of the summer, fall, or later, I don’t think you’re going to have more than a handful of farms survive this,” the farmer said.
A report earlier this month, Institute for Reforming Government lays out the rising challenges confronting Wisconsin farmers and calls on the Legislature to finish the business of passing reform legislation that will help bring back prosperity to the Dairyland’s farms.
Smith said farmers do need help, but just throwing money at the problem isn’t going to cut it. He said it’s time for systemic changes to sustain agriculture and promote a safe and reliable food system.
But things are going to have to change quickly if Wisconsin wants to save its family farms, the ag expert said.
“Agriculture was already the at-risk patient, to put it in the language of the pandemic,” Smith said. “This really hits at the worst possible time.”
Listen to the Vicki McKenna’s interview with Rob Riemer here.
Today in 1969, MC5 demonstrated how not to protest a department store’s failure to sell your albums: Take out an Ann Arbor newspaper ad that says “F— Hudsons” (without the dashes).
Not only did Hudsons not change its mind, Elektra Records dropped MC5.
Detective Kenneth Hutchinson of a California police department had the number one single today in 1977:
Steve Prestegard.com: The Presteblog 