Dan O’Donnell:

There’s an old saying in the law: When you have the facts on your side, pound the facts.  When you have the law, pound the law.  When you have neither, pound the table.

What could better explain Wisconsin Governor Tony Evers’ comically exaggerated response to the Legislature’s lawsuit challenging his authority to extend his “Safer at Home” order effectively shutting down the state?

“This isn’t a game,” he tweeted immediately after the suit was filed.  “This isn’t funny. People die every day because of this virus—oftentimes painful and lonely deaths—and the more we delay or play political games the more people die.”

Suffice it to say he has neither the facts nor the law to pound.

“This lawsuit puts people’s lives at risk by trying to take away Safer at Home, the best and most effective tool we have to save lives and prevent our hospitals from being overrun,” Evers added in a statement accompanying his Administration’s official response to the suit.

That response relies on a spectacular misinterpretation of Wisconsin Statute § 252.02 that pretends that the Governor’s Health Services Secretary has greater constitutional authority than the Governor.

The statute provides that the Department of Health Services (DHS) “may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” and “may authorize and implement all emergency measures necessary to control communicable diseases.”

This is not a blanket authority.  Rather, it is dependent upon the existence of an actual emergency.  An “emergency measure” is by definition one that is taken during an emergency.  On March 12, Governor Evers signed Executive Order 72 declaring that a state of emergency existed in Wisconsin because of the Coronavirus outbreak.

Specifically, he declared that Wisconsin faced a “public health emergency,” which is defined by Wisconsin Statute § 323.02(16) as “the occurrence or imminent threat of an illness or health condition” that “is believed to be caused by bioterrorism or a novel or previously controlled or eradicated biological agent” and will cause “a large number of deaths or serious or long-term disabilities among humans” as well as a “significant risk of substantial future harm to a large number of people.”

The “emergency” to which Wisconsin Statute § 252.02 rather obviously refers is a “public health emergency.”

Governor Evers understood this when he signed Executive Order 72, as it designated the “Department of Health Services as the lead agency to respond to this health emergency” and authorized it to “take all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the State.”

This authority is not absolute.  It is subject to the same legal and constitutional restrictions as any other department of Wisconsin’s Executive Branch.

The most obvious and glaring of these restrictions is Wisconsin Statute § 323.10, which Evers referenced in Executive Order 72 as granting him the authority to declare a public health emergency and provides that “if the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.”

That is exactly what Governor Evers did.  However, the statute also holds that “a state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

This statute is crystal clear: Without approval by the Wisconsin Legislature, the public health emergency no longer exists 60 days after it is signed into law.  Since the DHS’ authority as the “lead agency to respond to that emergency” derives from the existence of that emergency, once the emergency no longer legally exists, the DHS by definition can no longer “authorize and implement all emergency measures necessary” to get the disease under control.

This is simply common sense.  If there is no public health emergency, then there can be no governmental response to an emergency—especially when that response involves such dramatic infringement on basic constitutional rights of individuals to assemble, associate, and freely exercise religion.

The Evers Administration, though, pretends that these limits don’t apply to the Department of Health Services.

“It is well-accepted that statutes like Wis. Stat. § 252.02 provide broad grants of authority to respond to a very rare and narrow type of crisis—the very one we now face with a rapid spread of a novel communicable disease,” the Administration wrote in its response to the Legislature’s lawsuit. “Wisconsin’s version of these laws, in section 252.02, does just that.  It gives DHS flexible powers to address the specific threat of a rapidly spreading disease.

“That makes sense: this Court has long acknowledged the commonsense proposition that public health officials must be able to react swiftly and effectively in the face of an imminent or existing crisis.”

This language is critical.  Once the public health emergency expires, there is no longer by definition an “imminent or existing crisis” to which DHS can respond.

Consider this: Wisconsin faced an outbreak of Rhinovirus this past winter.  It was widespread and highly contagious.  Without a declared public health emergency, could DHS have closed schools, shuttered businesses, and locked worshippers out of churches to stop the spread of the Rhinovirus?  Under the Evers Administration’s logic, it could have.  This, of course, is ridiculous because Rhinovirus is the common cold.

It is frankly ridiculous to interpret Wis. Stat. § 252.02 as giving the DHS Secretary emergency powers that aren’t contingent on the existence of an actual emergency and as such are theoretically limitless.

Rather hilariously, though, the Evers Administration acknowledges in its lawsuit response that DHS’ authority is limited by the existence of an emergency—but not an emergency as defined in Wisconsin law, but a law as defined in Webster’s Dictionary.

“Of course, DHS’s authority under section 252.02(6) is not boundless; the statute provides limits on the agency’s power,” the Evers Administration wrote.  “First, DHS may exercise its authority under Wis. Stat. § 252.02(6) only in an “emergency”—a “serious situation or occurrence that happens unexpectedly and demands immediate action.” Emergency, Webster’s Third International Dictionary (1961).”

Yes, really.  Even though a “public health emergency” is clearly and narrowly defined by Wis. Stat. § 323.02(16), the Administration chooses instead to use the broad definition included in the dictionary.  The level of willful ignorance on display here is almost mind-boggling.

It also conveniently gives DHS unchecked power, so long as a “serious situation”—any serious situation, really—“happens unexpectedly” at any time.

As the Legislature asserts in its petition to the Wisconsin Supreme, DHS Secretary Andrea Palm’s “go-it-alone shutdown authority has no expiration date—making it greater than even the Governor’s emergency powers.  To be sure, Emergency Order 28 [which extended ‘Safer at Home’] says it terminates on May 26, but nothing suggests that it won’t be extended again.’

“Perhaps it will even run into 2021. In any case, by the time the Secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the Order’s countless other downstream societal effects. Our State will be in shambles.”

Truthfully, the State is already in shambles, primarily because of the arbitrary and capricious nature by which DHS determined which businesses were “essential” and could stay open and which were “non-essential” and were forced to close.

Under federal law known as the Administrative Procedure Act, when determining whether an administrative rule such as the extension of the Safer at Home order, “the reviewing court shall . . . set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Courts in Wisconsin have determined that an action is arbitrary and capricious if it “lacks a rational basis and is the result of an unconsidered, willful or irrational choice rather than a ‘sifting and winnowing’ process.”

Could there have been anything more unconsidered or irrational than DHS’ determination of what constituted an “essential” business?

As the Legislature notes, its “Order does not explain, for example, why bars and convenience stores may sell alcohol, but retailers are prohibited from selling clothes or shoes.

“The Order similarly fails to provide any justification for allowing arts and craft stores to operate, but not furniture stores. In short, DHS has provided no reasoned basis that could justify its ad-hoc micro-managing of Wisconsin’s economy.”

Far more troubling is the arbitrary and capricious nature by which DHS has determined which First Amendment-protected activities are essential and which are not.  For instance, “‘newspapers, television, radio, and other media services’ are allowed to operate as ‘essential businesses,’ even though printing newspapers and producing television and radio shows entail daily human contact—but churches, mosques, and synagogues cannot hold weekly religious services with more than nine people in a room, even if the services could be conducted in accordance with social-distancing guidelines.”

Both the freedom of the press and the freedom to practice religion are among the most cherished and important in American society, yet in Wisconsin only the freedom of the press is apparently essential.

“Hammering home the arbitrary and capricious nature of this discrepancy is the fact that DHS never bothers to explain why it is necessary to prohibit weekly religious gatherings, or limit weddings and funerals to 10 people, when daycare centers are permitted to operate with up to 50 children and 10 employees.”

The Wisconsin Institute for Law and Liberty first examines the Badger Bounce Back …

The past two weeks have seen two important updates to the statewide lockdown in place. First, on April 16, acting through Department of Health Services Secretary-Designee Andrea Palm, Governor Evers amended his so-called “Safer at Home” Order and extended it through May 26. Second, on April 20, Governor Evers announced the “Badger Bounce Back” plan (“the Badger Plan”). Under the Badger Plan, many of the restrictions now imposed on Wisconsin citizens and businesses will be gradually lifted when the Department of Health Services is satisfied that certain conditions specified in the Plan have been satisfied. Finally, on April 27, Secretary-Designee Palm made certain amendments to the “Safer at Home” order.

We have already written about the legality (or lack thereof) of the continuing lockdown order when and if the Governor’s declaration of public health emergency expires on May 11 (here). But assuming that the continuing lockdown orders are lawful, significant practical questions arise. How does the new Safer at Home Order compare to the old one? How soon will the Badger Plan allow Wisconsinites to get back to work and resume some semblance of their normal lives? The answers are going to leave many Wisconsinites dissatisfied.

While the new Safer at Home Order includes a few notable changes, it is more or less a continuation of the old order and in many cases actually imposes additional restrictions rather than fewer. And while the Badger Plan appears to set up some numerical standards and tests for relaxing the Safer at Home Order in stages, in fact, it really provides that the Governor and the Department of Health Services (“DHS”) can pretty much do whatever they want, whenever they want to do it. After a careful reading it’s hard to see how the Plan does much to inform Wisconsinites about when and how the government will end the lockdown.

“Safer at Home” 2.0

Governor Evers’ first “Safer at Home” Order was issued on March 24. Although the details of that order (the “March Order”) will not be recounted here, a brief summary helps frame the discussion. The March Order was actually issued by Secretary-designee of DHS Andrea Palm, relying on her own authority and a separate order issued by Governor Evers declaring a public health emergency.

Many Wisconsinites may not realize that the March Order begins by forbidding them to leave their homes. Doing so is made a crime, unless it falls within one of a number of “exceptions” to the lockdown. These include “Essential Activities” (such as obtaining necessary supplies and engaging in outdoor exercise), “Essential Governmental Functions” (such as law enforcement and child protection services), “Essential Businesses and Operations” (such as grocery stores and pharmacies), “Minimum Basic Operations” (such as inventory maintenance), “Essential Travel” (such as travel to care for vulnerable persons), and certain other “Special Situations.” The order also sets forth the now-ubiquitous “Social Distancing Requirements” and provides that failure to follow them is also a crime.

Given the expiration of the March Order by its terms on April 24 and the state of Emergency on May 11, Governor Evers needed to make a decision as to whether to lift the lockdown, involve legislative leaders in crafting a new plan, or continue to act on his own. He chose the latter, issuing a second Safer at Home Order (the “April Order”) that will take effect when the first one expires and last through most of May.

The new order adopts the same approach as the old one — criminal penalties for leaving the home unless one of the above-mentioned general exceptions applies. There were some key revisions, however. Most importantly from a legal perspective, the order no longer relies on the Governor’s emergency declaration, which expires in May. That means DHS is relying entirely on its own statutory authority for this new iteration of the lockdown. The legal issues are discussed at the link above and are the subject of a pending petition for an original action before the Wisconsin Supreme Court.

In issuing the April order, the Governor touted the success of the existing lockdown. The evidence for that claim is unclear. Since there were very few confirmed cases, deaths, or hospitalizations at the time of the March order, the only way to assess its impact is by comparison to models that purport to estimate what “would have happened” in the absence of social distancing measures. But none of these models have been shown to accurately project the course of the pandemic nor could they. The uncomfortable fact is that while the Governor may believe that the March order had some unquantifiable impact, no one can know for sure.

In fact, there is reason to believe that the models may be unduly pessimistic. Modeling done by Johns Hopkins and described by the Governor as “compelling” projected 2,100 deaths and 11,900 hospitalizations in Wisconsin by May 1 if the “Safer at Home” order was implemented and kept in place for two months (extending it through and beyond that date). But, as of April 27, DHS reported only 281 deaths and, according to an April 24 letter from Governor Evers to State Senator Van Wanggaard, cumulative hospitalizations were at 1,252 as of April 21.

In any event, the April Order cannot be characterized as “relaxing” the restrictions set forth in the March order, as may have been expected if the March Order “worked.” Many of its changes actually result in tighter standards rather than looser ones. For example:

• Essential Businesses and Operations are directed to “[r]estrict the number of workers present on premises” to the extent possible; to “[i]ncrease standards of facility cleaning and disinfection”; and to “[a]dopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.”
• Stores that permit in-person sales are directed to limit the number of customers in the store, establish special hours for vulnerable populations, and “use alternatives to lines.”
• “[L]ocal health officials” are permitted to close “[p]ublic parks and open space” if certain conditions are met such as repeated violations of the Order or too many visitors to permit compliance with social distancing requirements.
• Essential Travel is left in place as an exception, but “[i]ndividuals are strongly encouraged to remain at their primary residence or home” and again “strongly discouraged from engaging in unnecessary travel.”

But the April Order is not entirely a one-way ratchet. Probably most notable is the expansion of “Minimum Basic Operations.” Originally, these appeared to be business operations that were deemed non-essential, yet were permitted from some compelling reason. In the March Order, this included, for instance, “[t]he minimum necessary activities to maintain the value of the business’s inventory,” to “process payroll and employee benefits,” and to permit remote work. DHS has added delivery and mailings, curb-side pick-up, and “aesthetic or optional exterior work” (i.e. construction and lawn care) if strict guidelines are complied with. To give one example, curb-side pick-up for non-essential businesses is generally permitted if, among other things, “all of the operations are performed by one person in a room or confined space at a time.” For “aesthetic or optional exterior work,” only one person may be present at the job site.

Finally, the April Order removes a level of restrictions from a handful of discrete types of businesses or services, including public libraries, golf courses, and arts and crafts stores.

But in most ways, Safer at Home 2.0 is just more of the same.

The justification for a continuation of the status quo once again lies in a model. Modeling done for the Department of Health Services by Johns Hopkins projects peaks that will substantially exceed hospital capacity if the Safer at Home level is lifted. The Hopkins projections appear to have substantially overstated the number of deaths, hospitalizations, commitments to the ICU, and ventilator use for the period following the March order, suggesting that it may be overly pessimistic. But it is important to note that, even accepting the model, this peak will be hit even if the order is extended to June 26.

Badger Bounce Back or Dead Badger Bounce?

After weeks of confinement, the most pressing question for many Wisconsinites has been when the lockdown requirements will ultimately lift. Shortly after imposing Safer at Home 2.0, Governor Evers released a plan to reopen the state that his administration is calling the “Badger Bounce Back.” Alliteration aside, what does Evers’ plan look like?

The Badger Plan is in large part modeled off of President Trump’s Guidelines for Opening Up America Again, with some notable exceptions. It utilizes three concepts: Phases, Gating Criteria, and Core Responsibilities. Examination of each discloses that the Plan is short on substance, based on milestones that are unclear and difficult to measure, and leaves the decisions about when and how to reopen the Wisconsin economy up to the unfettered discretion of DHS.

Phases. Evers envisions a gradual loosening of restrictions in three phases. The descriptions are brief enough that they may be quoted in full here:

• Phase One “will include allowing mass gatherings of up to 10 people; restaurants opening with social distancing requirements; removal of certain restrictions including retail restrictions for Essential Businesses and Operations; additional operations for non-essential businesses; K-12 schools to resume in-person operation; and child care settings resuming full operation.”
• Phase Two “will include allowing mass gatherings of up to 50 people; restaurants resuming full operation; bars reopening with social distancing requirements; non-essential businesses resuming operations with social distancing requirements; and postsecondary education institutions may resume operation.”
• Phase Three “will resume all business activity and gatherings, with minimal protective and preventative measures in place for the general public and more protective measures for vulnerable populations.”

Importantly, these descriptions are intended merely as summaries and may or may not reflect what activities will be forbidden or permitted during each phase. DHS “shall announce the transition to each Phase with an order fully articulating the activities that will [or will not] resume.”

The most we can say is that Phase One will be whatever DHS says it is.

Gating Criteria.The Gating Criteria are metrics that must be met in Wisconsin before the state can transition even into Phase One. They require a “downward trajectory” of (a) influenza-like illnesses reported within a 14-day period; (b) COVID-19-like syndromic cases reported in a 14-day period; and © positive tests as a percent of total tests within a 14-day period, along with additional benchmarks to be met by hospitals such as the presence of “[r]obust testing programs . . . for at-risk healthcare workers.”

The Gating Criteria track the federal guidelines with one addition and one subtraction. Unlike the federal guidelines, the Badger Plan requires a “[d]ecreasing number of infected healthcare workers.” And while the federal guidelines would allow a “[d]ownward trajectory of documented cases within a 14-day period” as an alternate to the “positive tests” benchmark described above, the Badger Plan does not permit this substitution.

The Plan does not explicitly say when and how the decision that the State has satisfied these gating requirements will be made. The absence of direction is significant since the gating requirements themselves are unclear. How DHS will define or measure the number of cases with “influenza” or “COVID-19” symptoms is not specified. Nor does the order explain how “Influenza” symptoms and “COVID-19” symptoms are to be distinguished since the Badger Plan treats them separately and requires that both experience a 14-day decline.

Even more fundamentally, the Badger Plan does not explain what constitutes a 14-day decline. Is it a decline in the number of reported cases or positive tests for each day within a 14-day period or a decline from the number of new cases or positive tests on the first day of the period as compared to the final day? Is it a decline in daily averages for a 14-day period as compared to the prior 14 days? Must a curve fitted to daily totals during the 14 days have a negative slope? Initially, the Governor was quoted as saying there must be a 14 consecutive day decline although consideration would be given to making allowance for an “anomalous” day. More recently it was suggested that a “rolling average” would be used.

The most we can say is that the gating requirements will be met when DHS says so.

Core Responsibilities. These are additional benchmarks in five key areas: testing; tracing; tracking; personal protective equipment; and health care capacity. Although the criteria appear to be loosely based on the federal guidelines, the origin of the exact numbers (e.g., 85,000 tests per week or approximately 12,000 tests per day) is not evident from the text of the order.

And, more importantly, “benchmark” is a bit of a misnomer. The Badger Plan states only that “[t]o move to the next Phase, the state must make progress toward” the Core Responsibilities. That presumably includes Phase 1, which means that the existing lockdown will continue until such progress has been made. “Progress,” of course, can mean a lot of different things.

The most we can say is that the Core Responsibilities will be met when DHS says that they have been met.

Taken together, then, the Badger Plan is not much of a plan at all. It says that there are certain necessary conditions for reopening the state, but never explains what conditions are sufficient for reopening or even for moving from one phase to another. In addition, the Plan reserves to DHS the ability to loosen restrictions “if it is determined that removing the restrictions will have minimal impact on the state’s ability to meet its Core Responsibilities and Gating Criteria” and to tighten restrictions in particular areas to address “localized outbreaks.” This gives DHS the “flexibility” to make far-reaching decisions about how the Wisconsin economy will be permitted to operate, and to make them up as it goes along.

Who knows, and who could possibly know, what that might mean? A hint may be provided by the administration’s reliance on modeling done by Johns Hopkins. That model purports to show that the state can avoid exceeding hospital capacity only by South Korean-style testing, isolation, and contact tracing. In a letter to Senator Van Wanggaard, Governor Evers declined to say when the testing objective — much less those for isolation and contact tracing — might be met.

Conclusion

While flexibility has value, so does a clear set of guidelines. Those Wisconsinites looking for a glimpse of the return to normalcy are going to be disappointed and will have to look elsewhere for a ray of hope. It is not simply that the Badger Plan does not make any promises. It does not even describe a set of concrete conditions for a presumptive re-opening. Its Gating Criteria are not only not binding; they are inadequately defined. Each phase is vaguely defined and subject to revision. Progress toward Core Responsibilities is undefined.

Wisconsinites have been asked to live under unprecedented restrictions. They have been told that doing so is necessary to “flatten the curve” so the virus spreads more slowly and does not overwhelm the health care system. Over a month in, there is still no clear definition of “success.” At a certain level, this is understandable. Given that there is still much we do not know about the virus, continuing or beginning to lift the lockdown will require an assessment of costs and benefits rooted in probabilities and educated guesses, rather than scientific certainty. Hedging is an all too human response. But that doesn’t mean that it is an adequate one.

… and then the alternative from Wisconsin Manufacturers & Commerce: