There were a lot of heated arguments on Tuesday as the State Supreme Court heard oral arguments over a challenge to Governor Evers Safer at Home order.
GOP Attorney Ryan Walsh argued that allowing DHS Secretary Andrea Palm to issue indefinite orders during a pandemic is an unconstitutional power grab.
“If the governor can use his Public Health secretary to exercise the police power over the state indefinitely the governor would never agree to any legislation, why would he agree to legislation?”
Assistant Attorney General Colin Roth says the legislature already has given the Governor the power to handle health crises.
“And the idea that because the statute is passed under the legislature’s police power that the individual acts of execution under that police power statute are somehow legislative power I think it’s absurd. All you have to do is look at the criminal law statutes.”
Republicans want the court to strike down the order, but not right away, says Attorney Walsh.“Your honor, everyone understands that such an order would be absolutely devastating and extraordinarily unwise, and that is exactly why the legislature is asking for a six day stay of any order.”
Legislative Republicans want D H S Secretary Andrea Palm to meet with them to craft rules for the order, which could take two weeks to complete. Roth says that request is indicative of how Republicans feel about the case. “I think you can tell from the concession, that the order should be stayed, that the legislature has made. You understand exactly why they made that concession, because people will die if it disorder is enjoined with nothing to replace it.”
Roth was using the outbreak in Brown County as an example of why taking weeks to craft orders would be dangerous when Chief Justice Patience Roggensack said that was a special case.
“That was due to the meatpacking, though. That’s where Brown County got the flare. It just wasn’t just the regular folks in Brown County.”
There were plenty of heated questions and positions laid out by the conservative members of the court. Justice Rebecca Bradley compared the state’s Safer At Home Order to the US Supreme Court’s Korematsu decision which legalized the internment of Japanese Americans during World War II.
“And that justified and I’m quoting assembling together and placing under guard all those of Japanese ancestry in assembly centers during World War II. Could the secretary under this broad delegation of legislative power or legislative like power order people out of their homes into centers where they are properly socially distanced in order to combat this pandemic?”
Justices met Tuesday evening in closed session but have not yet issued a decision in the case.