This past week the WI Supreme Court invalidated Gov. Evers’ Emergency Order 28 – Safer At Home.

You can read more here:

Wisconsin Supreme Court Says the State’s COVID-19 Lockdown Violated the Rule of Law and the Separation of Powers

The Wisconsin Supreme Court invalidated the order in this ruling: WI Legislature vs Andrea Palm

This ruling is technical in some aspects, but worth reading.  What deserves commentary in this case is the concurring opinions by Justice Rebecca Bradley and Justice Daniel Kelly, and the dissent by Justice Brian Hagedorn.

Justices R. Bradley and Kelly, deal with the broad unconstitutionality of such an order.  We believe they are spot on.  We are saddened that the Republican Party didn’t do all it could to get the law abiding, conservatives, and church going public out to vote and re-elect Justice Dan Kelly.  What a difference his vote has made in this case, and why these elections matter.

Now we come to Justice Brian Hagedorn, and his dissent.  We know many of the RRP have met Justice Hagedorn when he was running for the WI Supreme Court.  He is a good person, who we thought held much of the same philosophical beliefs as many in the RRP.  However, it is apparent he spent too long as the legal counsel to Governor Walker, arguing for the State of Wisconsin, not seeing the forest for the trees.  This case, as Justices R. Bradley and Kelly write in their opinions, is not just about the definition of an “order”or “rule”, but about governmental overreach in authority.

Justice R. Bradley writes in her concurring opinion beginning on page 40:

“Under the Wisconsin Constitution, all governmental power derives “from the consent of the governed” and government officials may act only within the confines of the authority the people give them. Wis. Const. art. I, § 1. The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it.”

In footnote 3 in her opinion on page 41:

“Spurning more than two centuries of fundamental constitutional law as well as the Wisconsin Constitution’s guarantee of liberty, Justice Brian Hagedorn shockingly proclaims “the judiciary must never cast aside our laws or the constitution itself in the name of liberty.” Justice Hagedorn’s dissent, ¶259. Setting aside the self-contradictory nature of that statement, Justice Hagedorn’s 53-page opinion contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty. The Wisconsin Constitution IS the law——and it reigns supreme over any statute. “The Constitution’s supremacy over legislation bears repeating: ‘the Constitution is to be considered in court as a paramount law’ and ‘a law repugnant to the Constitution is void, and . . . courts, as well as other departments, are bound by that instrument.’ See Marbury [v. Madison], 5 U.S. (1 Cranch) [137] at 178, 180 [1803].” Mayo v. Wis. Injured Patients and Families Comp. Fund, 2018 WI 78, ¶91, 383 Wis. 2d 1, 914 N.W.2d 678 (Rebecca Grassl Bradley, J., concurring).

The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).”


Justice Daniel Kelly writes in his concurring opinion on page 63:

“The court’s opinion ably describes why these provisions do not confer on her the authority necessary to support the Order, and I join it. My purpose in writing separately is to describe why, under our constitutional form of government, the Legislature cannot possibly have given the Secretary the authority she believes she has.”

Justice Kelly goes on to explain the view of DHS Secretary Andrea Palm and why she is wrong on page 63:

“¶89 In the Secretary’s view, the Legislature gave her plenary power to simply “act” without the need of any further statutory or regulatory policy. Her brief candidly asserts there are no statutory or regulatory limitations on her authority to address communicable diseases:

Wis. Stat. § 252.02 is not legislation “enforced or administered by” DHS through issuing Safer-at-Home [Order], and DHS’s actions here did not “implement, interpret, or make more specific” standards that the Legislature designed by statute. Unlike statutes that regulate certain conduct or activities, like food safety or traffic laws, section 252.02, as relevant here, simply empowers DHS to act. Thus, Safer-at-Home is not “enforc[ing]” any legislative requirement . . . .

(Emphasis added.) That is to say, she expressly disavows any suggestion that she is implementing statutory standards. And she not only acknowledges, but affirmatively asserts, that she is not enforcing any statutory requirement. This statute, she says, simply empowers her to “act.” When queried during oral arguments, her attorney said there are no limits on this power, saving only judicial or legislative intervention.

¶90 But our constitution does not confer on any governmental official, bureaucrat, or employee a generalized power to “act.” There are three powers on loan to our government——legislative, executive, and judicial. To the extent governmental officials may act at all, it is only within the context of one of those powers. Therefore, we must discern what type of authority the Secretary exercised when she issued her Order. And then, assuming Wis. Stat. § 252.02 granted the Secretary all the power necessary to issue the Order, we must compare that grant against our basic constitutional structure and the non-delegation doctrine to determine whether the statute impermissibly delegated part of the Legislature’s power to the Secretary.”


Justice Kelly goes on to explain the three branches of government and their respective roles.  Justice Kelly also provides the following analysis on Justice Hagedorn’s argument on page 79:

“If § 252.02 enables the Department to confer on itself the power to confine people to their homes, close businesses, etc., then it has quite obviously transferred no small amount of the legislature’s core authority to the executive branch, thereby enabling the Secretary to make up public policy decisions as she goes along. Without that understanding of the Secretary’s authority, the Order could not function. Justice Hagedorn mirrors this error, and even uses it as the organizing principle for his dissent. The whole of his statutory analysis is faulty because he has not discerned that the Order implicitly created, or assumed to exist, a host of public policy decisions.8  Under Justice Hagedorn’s rationale, an executive branch agency is free to make ad hoc policy decisions, so long as they are temporary and acted upon immediately. Nothing in our legal canon supports such an odd proposition.”

And footnote 8 from above:

“Justice Hagedorn’s statutory analysis might be perfectly serviceable if we were considering an executive order implementing previously established public policy decisions. But that is not this case. So, as a functional matter, his analysis is operating on a hypothetical set of facts.”

Justice Kelly addresses the two other arguments on page 82:

“¶116 The Order fares no better under the second principle of non-delegation: “[O]nce [the Legislature] prescribes the rule governing private conduct, it may make the application of that rule depend on executive fact-finding.” Id. Under this rationale, it could conceivably be appropriate for the Legislature to confer on the Secretary the power to confine people to their homes if she finds that such an action is necessary to control the spread of a communicable disease. But no statute or rule confers on her that authority, so the Order cannot be justified as the exercise of executive authority under this principle.

¶117 Nor is the Order salvageable under the third non-delegation principle, which provides that the legislature “may assign the executive and judicial branches certain non-legislative responsibilities.” Id. at 2137. The Secretary, however, insists that Wis. Stat. § 252.02 “simply empowers DHS to act,” and that the Order “embodies the quintessential executive task of deciding how to address, for the time being, the exigency caused by COVID-19,” and that her authority to address that exigency is limited only by judicial or legislative intervention. If accepted, this would work an intolerable inversion in the nature of executive authority, allowing it to swallow almost all of the Legislature’s power. Here’s why.

¶118 If Wis. Stat. § 252.02 makes the Order’s contents entirely executive, a few strategically written statutes would make the legislature a virtual non-entity. What if the legislature instructed the Department of Justice to “issue orders . . . for the control and suppression of [crime]”? Or it enacted a statute that “simply empower[ed] [the Department of Financial Institutions] to act” with respect to the subjects within its purview? Or it charged some agency or other with “the quintessential executive task of deciding how to address, for the time being, the exigency caused by” economic vicissitudes? If the executive’s authority under each of these hypothetical delegations was as staggeringly broad as the Secretary claims for herself under § 252.02, the whole of our lives could be governed exclusively from within the executive branch.

¶119 But none of those hypotheticals would be consistent with the separation of powers for the same reason the Order is not. An agency cannot confer on itself the power to dictate the lives of law-abiding individuals as comprehensively as the Order does without reaching beyond the executive branch’s authority.9

(Footnote) 9 Justice Hagedorn suggests my attention to constitutional boundaries is merely an effort to “try to get around” his observation that “[w]e do not enjoin particular enforcement actions under a facially constitutional statute simply because the statute could be deployed in ways that violate the constitution.” Justice Hagedorn’s dissent, ¶¶249, 248. I have no need to “get around” this observation because in this court we don’t let the tail wag the dog. Justice Hagedorn is concerned about remedies when what we are concerned about is enforcing a structural limitation on the branches’ powers. It would be irresponsible of us not to consider constitutional limitations when we declare what the law is.”

Finally Justice Kelly concludes:

“¶120 The Order may be a brilliantly conceived and executed response to COVID-19. Or maybe it’s not. Either way, that is not the question before the court. Brilliance does not confer authority. Nor does necessity. Our only task in this case was to determine whether Secretary Palm has the authority to issue the Order. We had an unavoidable, non-discretionary, obligatory responsibility to decide that question. And so we have.10 Because I agree with that declaration, I join the court’s opinion. I wrote separately because it is important to establish that, if we agreed with the Secretary’s reading of Wis. Stat. § 252.02, we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process.11”


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