2020 | Week of August 31 | Radio Transcript #1375
Do public health situations that have at some point been deemed “pandemics” mean that the rule of law is set aside? I’ve been asked that question in one form or another almost every day since March when Governor Evers issued his first statewide public health emergency declaration and stay-at-home order, which meant that all schools, both public and private, were shut down for in-person instruction and churches were put in confusing situations when they were acknowledged as “essential businesses,” but had restrictions placed on them that were not put on other essential businesses.
As the governor’s first 60-day emergency declaration was about to end, he, under the auspices of the Secretary of the Department of Health, extended the order—a decision that didn’t last too long because the state legislature filed a lawsuit alleging that the law did not allow for this extension. The state’s highest court, our Supreme Court, ruled in favor of the legislature and struck down immediately most of the extension orders. The court’s decision, however, did not apply to schools, both public and private.
Then, in late July, Governor Evers issued a second 60-day COVID-related statewide public health emergency declaration along with an order requiring that citizens across the state wear masks when in public. As a result, many stores and churches that hadn’t had mask policies previously began enforcing a mask policy. The wording of the order made it clear schools, both public and private, were included.
On Friday, August 21, just days before many schools were set to begin in-person instruction, the Madison/Dane County Health official issued a county-wide order that prohibited in-person instruction for grades 3 through 12 in any school, public and private, located within Dane County.
In our work, we work very closely with attorneys who are constitutional experts. Throughout all of this chaos, they have repeatedly told us that the rule of law is not set aside even in the midst of a public health crisis. If it were true that the rule of law is set aside, then what we would have left is the whim of man, which is a frightening alternative to the rule of law.
The problem with this idea is that until either the state legislature takes some decisive action or a court makes a determination, the officials at all levels of government who are currently either elected or appointed by someone who is elected have pretty much free rein to tell citizens what they can and cannot do.
On the Governor’s second public health emergency declaration, the state legislature could have passed a joint resolution revoking it. They chose, or more accurately, the Assembly leadership chose, not to do that. However, last week a lawsuit was filed alleging that the governor’s second COVID-related emergency declaration and associated mask order are illegal.
Wisconsin Institute for Law and Liberty filed the case in Polk County Circuit Court on behalf of three private citizens. The crux of the argument is that the governor had no authority to issue a second emergency declaration because the second declaration was still dealing with COVID and the facts of that had not significantly changed—and some would say if they had changed, they had changed in the positive direction. The lawsuit argues that the 60-day limit on the governor’s authority is not serial, meaning he can’t just keep declaring 60-day emergencies and issuing related orders on the same issue. In fact, the law says any extension of the emergency declaration has to have legislative approval, which the governor neither sought nor had. This lawsuit is about the limit on the governor’s authority.
Also last week, Wisconsin Institute for Law and Liberty filed a lawsuit directly to the Wisconsin Supreme Court alleging that the Madison and Dane County health official had no statutory authority to tell private schools they could not determine for themselves if they wanted to hold in-person instruction for grades 3 through 12. In addition, the lawsuit asserts that the order unconstitutionally infringes upon the constitutional right of parents to direct the education and upbringing of their children and upon the constitutional right of parents to freely exercise their religion. This lawsuit is about the limit on local government’s authority.
Ultimately both these cases will land at the state supreme court. Until the court acts, both local and state officials will likely keep pushing their interpretation of what the law allows them to do. This is all a powerful reminder that until and unless one branch of the government exercises its check on another branch, the presumption and public perception is that what a branch chooses to do is legal. It’s also a powerful reminder that elections have very real consequences.
This is Julaine Appling for Wisconsin Family Council reminding you the prophet Hosea said, “My people are destroyed for lack of knowledge.”