As the Wisconsin Supreme Court discerns its decision on whether to side with or deny the Republican-led legislative lawsuit against Governor Evers’ administration over the Safer-at-Home coronavirus response order, a conservative advocate explained how the GOP isn’t making its push based on the terms of the order itself.
“The question is, who gets to decide?” said Rick Esenberg, President and General Counsel of the Wisconsin Institute for Law & Liberty, on WTMJ’s Steve Scaffidi Show.
“The case that was argued was not about the specific terms of the ‘Safer-at-Home’ order. It’s not about whether we should have one.”
He believes the GOP’s argument is focused on the idea that the orders from Department of Health Services Secretary-Designee Andrea Palm and the Evers administration equate to unlimited legislation coming from the Democratically-controlled executive branch, instead of from the GOP-majority legislature itself.
“It would be a constitutional problem if you read the law to say the legislature can essentially say ‘We’re delegating all our authority to a single executive officer…for as long as he or she wants,” said Esenberg.
“That would be legislation…our constitution vests to make the law in the Assembly and the Senate.”
Esenberg argued that a denial of the ‘Safer-at-Home’ order would not end restrictions on the general public due to coronavirus.
“If the legislature wins this case, it doesn’t mean there’s no restrictions going forward,” he said.
“It does mean the Governor and the Legislature will have to sit down and will have to work things out.”
During Tuesday’s hearing, Justice Rebecca Bradley attempted make a comparison of the powers used to make the “Safer-at-Home” order to that of the United States’ incarceration of people of Japanese descent during World War II. Her comment drew large criticism, saying the comparison isn’t fair.
Esenberg’s argument is that the context of the discussion involved showing a hypothetical situation that she argued would be legal to do in Wisconsin if the executive branch was allowed to continue the “Safer-at-Home” order.
“It is a signal warning to what happens when you allow panic and fear in the sense of an emergency to allow you to sort of forget constitutional limitation. She invoked that because it’s a well-known touchstone in American constitutional law,” he argued, saying people who take the argument out of context are making a “bad faith reading” of what she said.
“She said, ‘Look what they did in Korematsu (vs. United States). If you are right, and the Secretary of Health Services can do whatever it is she wants, could she then say we can take people out of their homes if they are infected by the disease and make them stay somewhere else where they are properly distanced so that they don’t spread the disease?’ That is not a wild hypothetical…I’m not saying the Governor has suggested it, but it has been suggested. That is how lawyers test the principle…we typically test that with hypotheticals, ‘What if she does this?'”