Wisconsin’s Supreme Court heard oral arguments Tuesday, May 5, in a lawsuit challenging the state health department’s authority to extend the Safer at Home order in response to the ongoing COVID-19 pandemic.
The Republican-controlled Legislature sued Department of Health Services Secretary-designee Andrea Palm and other health department officials arguing that extending the order until May 26 sidesteps state rulemaking laws and prevents lawmakers from providing oversight. The health and justice departments contend the law gives DHS a broad range of powers to implement emergency measures to control pandemics such as COVID-19.
Attorney Ryan Walsh representing the Legislature and Assistant Attorney General Colin Roth on behalf of the health department answered occasionally heated questions from justices for more than 90 minutes during the proceeding held over a video call and streamed live online.
“In the midst of the deadliest pandemic the world has faced in over a century, the Legislature asks this court to handcuff DHS’s power to combat infectious disease,” Roth said in the opening moments of his remarks before Justice Rebecca Bradley interjected.
Bradley challenged Roth on the constitutionality of an unelected official prohibiting unnecessary travel and shuttering nonessential businesses under threat of imprisonment.
“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?” Bradley said.
Roth pointed to statutes authorizing the health department to act in order to protect public health, particularly when dealing with new diseases that lawmakers could not plan for ahead of time.
“For over a century courts have recognized that, in the context of infectious diseases, it is practically impossible for the Legislature to be able to predict exactly what is necessary,” Roth said.
The lawsuit was not about when or how the state should begin reopening amid the COVID-19 pandemic, but centered on administrative law and “whether the most consequential, sweeping regulation like we ever issued in our state’s history” was subject to rulemaking procedures, Walsh said to the court in his opening statement.
“The answer is clearly yes,” he said.
The Legislature seeks an injunction on the Safer at Home order, with six days to allow for the health department to work with lawmakers on a new plan — a timeline Gov. Tony Evers said would be insufficient due to legislative hearings and public comment.
Justice Ann Walsh Bradley pressed Walsh on the consequences of putting a temporary hold on the Safer at Home order and the potential impact to the public.
“The ramifications, your honor, are that the governor and his agencies, which derive their powers from the Legislature, would need to sit down with the legislative branch and come up with a bipartisan, sensible response to this pandemic going forward,” Walsh said.
Asked the same question later, Roth said an injunction without a plan to replace Safer at Home would be “absolutely devastating and extraordinarily unwise,” and he warned of unchecked spread of the disease if Wisconsinites resumed usual activities.
“This is exactly why the Legislature decided that the public health agency needs flexibility to act in these extreme circumstances,” Roth said.
The extended Safer at Home order went into effect April 24. The revised order eased some restrictions on businesses to allow for deliveries, mailings and curbside pick-up, and also closed K-12 schools for the remainder of the academic year.
Debate over the economic impact of COVID-19 restrictions led to recent protests in Wisconsin, Minnesota, Michigan and other states around the country, putting some politicians at odds with the recommendations of health experts.
Several organizations filed official comments, called amicus briefs, with the Supreme Court regarding the lawsuit. The Tavern League of Wisconsin, though generally in favor of public health measures, urged the court to grant the injunction. Several labor unions filed a brief in support of Safer at Home.
Locally, lawmakers expressed mixed views about the Safer at Home order. State Assembly Reps. Shannon Zimmerman, R-River Falls, Rob Stafsholt, R-New Richmond, and Warren Petryk, R-Town of Washington, have come out in favor of the lawsuit and for lawmakers to have a greater role in the response to the pandemic; while Sens. Patty Schachtner, D-Somerset, and Jeff Smith, D-Eau Claire, praised the Safer at Home order’s impact on curbing the spread of the disease.
Since the start of the pandemic, as of May 4, there were 8,236 lab-confirmed cases of COVID-19 and 340 deaths in Wisconsin, according to the health department.
The Supreme Court was scheduled to meet in closed conference 1:30 p.m. Tuesday.
Correction: An earlier version of this story mischaracterized what was requested in the lawsuit. Lawmakers seek a temporary injunction on the Safer at Home order, but suggested the court hold off on enforcing the injunction for six days to allow the health department to work with the Legislature on a new COVID-19 plan.