
Wisconsin Supreme Court strikes down stay-at-home order that closed businesses - hanging
https://www.jsonline.com/story/news/politics/2020/05/13/wisconsin-supreme-court-strikes-down-tony-evers-coronavirus-orders/5179205002/
======
sandworm101
This is where culture really matters. Almost every jurisdiction in the western
world has faced this issue. Governments are issuing orders that, when push
comes to shove, might not be 100% legitimate in the eyes of a court. In most
countries that hasn't mattered. People acknowledge the covid problem and are
obeying the "orders" despite them, perhaps, not having legal teeth. This
requires trust. Like the current politicians or not, most populations respect
their governments and are willing to support emergency measures in the short
term. Whether they voted for them or not, they trust that their leaders are
not evil.

But what about the US? If all government is corrupt, if all taxes are sin, if
all leaders _on the other side_ are traitors to the cause, the people will
never respect those in charge. The people don't obey the "orders" nor follow
advice. Then they wrap themselves in the flag and actively work against the
measures in the name of freedom. That cultural chicken has now come home to
roost.

This state supreme court could have delayed. Cases take years to get to state
supreme courts. They could easily have pushed this case until after this
disease has come and gone. Instead they pushed this through in order to get a
quick victory over a governor with whom they disagree politically.

~~~
AbrahamParangi
If it makes you feel any better, the lockdowns probably don't matter in the
limit.

1) Individual behavior changed prior to the lockdowns (people don't want to
die)

2) The government appears generally too incompetent to figure out how to lower
R0 low enough to eradicate the virus

3) Since everyone can see that the govt is fucking this up, the marginal
utility of hard lockdowns becomes less than the marginal pain. Some people
will socialize, go to restaurants, etc. but...

4) It probably won't be more than a 50-75% return to normality because people
don't want to die, and risk preferences vary so some will remain cautious.
This will, crush small businesses, restaurants, bars, leisure, etc.

So since the govt is too incompetent to bring the virus to actual 0, then
formal lockdowns don't matter because you're not getting rid of the virus
anyway and raising them doesn't matter much either, because you're not going
back to normal.

~~~
icelancer
Points #1 and #4 are evident in states who have already re-opened for
business: Restaurants are seeing 80% reduction regarding in-room dining year
over year, SIP orders being lifted be damned.

Point #1 was reinforced by looking at OpenTable data as well. de Blasio told
people to go to restaurants, and on that same day he urged people to
congregate in close quarters, reservations were down 34% year over year and
had been trending down for 2 weeks.

People aren't stupid despite what the media reports, picking out groups of
people to prove a point they want to push.

Furthermore, the lockdowns moved the Overton window for a lot of people,
hammering it in their head that they need to practice social distancing. It's
not likely going to get any stronger with government-mandated half-measure
lockdowns continuing.

------
mchusma
“If a forest fire breaks out, there is no time for debate. Action is needed.
The governor could declare an emergency and respond accordingly. But in the
case of a pandemic, which lasts month after month, the governor cannot rely on
emergency powers indefinitely,” Roggensack wrote for the majority.

Refreshing to see some pressure for democracy to resume.

~~~
Narkov
Democracy to resume?? By striking down a democratically elected officials
order?

~~~
xamuel
The order they struck down was an order issued by a non-elected bureaucrat.

~~~
Narkov
Which is, of course, under the delegated authority of the governor.

------
sterlind
Both sides: courts are supposed to apply the law to the facts. Lawyers guide
judges in their arguments, and the court weighs each one, resolving conflicts
through tests and precedent.

Read the text of the decision before bringing politics into it.

IANAL, but browsing the text:

\- The ruling cites the Wisconsin constitution.

\- Governors can issue emergency orders (and maybe rules?) effective for 150
days.

\- There's a distinction drawn between orders and rules. It doesn't matter if
it's declared as an order, if it invokes the powers reserved for rules, it's a
rule.

\- Some reasons the court found it to be a rule: it applies to a general class
(all residents), and defines new crimes (non-compliance)

\- Criminal penalties can only be invoked for properly-promulgated rules.

\- Therefore, it's a rule, not an order.

\- Can it be a valid emergency rule? The court cites an example of a forest
fire, there's no time for deliberation.

\- The end date is ambiguous and this emergency is long-lived, therefore it
could be brought for deliberation like a normal rule.

Then there's lots of handwringing about "an unelected official imprisoning
whoever she sees fit", which is very handwavey and makes me suspect:

\- The emergency rulemaking machinery of Wisconsin is vaguely defined, so
there's not a specific rebuttal.

\- There might have been some judicial activism here.

Ideally, the court would grant a stay on the enforcement of the decision, to
give her time to properly promulgate the rule.

If the legislature resists, or the court doesn't grant the stay, that sucks,
the bars and restaurants will open, people will get sick and die. Or maybe the
Republicans will turn out correct and everything is fine.

It may be a boneheaded decision, but there's no legal recourse for bad policy
correctly followed.

~~~
asabjorn
> If the legislature resists, or the court doesn't grant the stay, that sucks,
> the bars and restaurants will open, people will get sick and die. Or maybe
> the Republicans will turn out correct and everything is fine.

This assertion needs a citation. If this should be true either hospitalization
must be so high that it overwhelms the health system, which was the original
justification for the lockdown, or death rate must be high.

The 1.5 week old CDC report [1] shows same hospitalization rate as the flu for
the vulnerable 65+ population, and less for the vulnerable <18 year
population.

Stanford study [2] shows same death rate as flu.

At this point most states have partially reopened [3] and we are not seeing a
surge in COVID cases.

[1] [https://www.cdc.gov/coronavirus/2019-ncov/covid-
data/pdf/cov...](https://www.cdc.gov/coronavirus/2019-ncov/covid-
data/pdf/covidview-05-01-2020.pdf) [2]
[https://news.berkeley.edu/2020/04/24/study-challenges-
report...](https://news.berkeley.edu/2020/04/24/study-challenges-reports-of-
low-fatality-rate-for-covid-19/) [3]
[https://www.nytimes.com/interactive/2020/us/states-reopen-
ma...](https://www.nytimes.com/interactive/2020/us/states-reopen-map-
coronavirus.html)

~~~
apostacy
Meanwhile, Sweden never had shelter in place orders, and they did not fare
worse than France or Ireland.

~~~
jeffbee
According to EuroMOMO, Sweden's excess mortality rate this year is "high",
France's is "low" and Ireland's is "no excess".

[https://www.euromomo.eu/graphs-and-maps/](https://www.euromomo.eu/graphs-and-
maps/)

~~~
henrikschroder
The map shows per-week z-score excess, not some kind of yearly total. What you
said only applies to week 17.

During week 15 (Easter), Sweden had "very high" excess, Ireland had "low"
excess, while UK, France, Spain, and Italy had "extremely high" excess.

~~~
apostacy
I believe far more people are going to die over the next few years from the
economic collapse than the pandemic would have killed had we used the Swedish
model.

For most readers of HN, this has just been like a vacation. Our investments
have lost some value. We will have to lower our expectations for our next
jobs. Maybe we can't buy a second car.

Most countries have burned down the village in order to save it.

------
stock_toaster
Color me unsurprised. Politics in Wisconsin is incredibly broken[1] (and
purposefully so).

[1]: [https://www.wpr.org/us-supreme-court-ruling-effectively-
ends...](https://www.wpr.org/us-supreme-court-ruling-effectively-ends-
wisconsin-gerrymandering-challenge)

~~~
bduerst
As someone who grew up in WI, I can say it's disgusting to watch the state get
ransacked, from the gerrymandering to the pillaging of the UW system, to the
rejection of universal collective bargaining rights and evicting of citizens
off their own land for a Foxconn factory. It makes me ashamed.

~~~
cjslep
Hey don't feel bad, you're in great company. In NC we've also got the
gerrymandering, anti-trans bathroom-bill, state-legislature-hates-the-governor
partisanship (state R's would rather burn the state constitution than let the
D's participate), and pro-Republican election fraud to top it off. Just think
how many other states can still join in!

------
aegis4244
The Republicans who brought the lawsuit argue that, in part, continuing the
lock down isn't appropriate because deaths from covid19 are going down. They
don't connect the declining deaths to being locked down. You would think they
would notice.

~~~
SpicyLemonZest
The question is, if deaths going down isn't the end condition, what is? Surely
there has to be some point soon where the legislature gets to determine the
laws of the state again.

~~~
bsder
Deaths going down is only _one_ thing that needs to occur.

And, by the way, deaths going down is doing so _soooo_ slowly because we
really didn't get the R0 much 1.0. If people had actually locked down
_PROPERLY_ , deaths would be dropping much faster.

In addition, you need testing and contact tracers. You also need abundant
personal protective equipment in your health providers for if you get a spike.

The problem is that the US federal government _squandered_ 60 days in which it
should have been filling those other criteria.

~~~
SpicyLemonZest
I don't see why all those things need to happen before the Wisconsin
legislature is allowed to have a say. The state can still have a stay-at-home
order if the legislature thinks it's needed.

~~~
isbjorn16
Surely the Wisconsin legislature, if it desired to direct these efforts, could
muster a plurality of the state legislature to override or overrule the
Governor, could they not? If it's truly a case of gubernatorial overreach,
it's not like they don't have a wide variety of options at their disposal. I'm
hardly a legal scholar, but I have yet to hear of a state that hasn't been
able to override a governor's decision making process if they really felt the
need.

I'd buy Wisconsin Supreme Court's justification if we weren't talking about a
fucking pandemic, but here we are.

~~~
vorpalhex
The issue is with the invocation of emergency powers which do not usually have
an override process thus the need for the judiciary to weigh in.

~~~
vkou
Typically, the override processes require 2/3rds of the legislature.

If the republican part of the legislature could convince the democratic part
of the legislature to vote with them, they could probably pull this off. Since
they can't, they are asking partisan judges to force the issue, instead.

------
hanging
The jsonline link moved to:

[https://www.jsonline.com/story/news/politics/2020/05/13/wisc...](https://www.jsonline.com/story/news/politics/2020/05/13/wisconsin-
supreme-court-strikes-down-tony-evers-coronavirus-orders/5179205002/)

I emailed the mods address.

Another:

[https://www.cnn.com/2020/05/13/politics/wisconsin-supreme-
co...](https://www.cnn.com/2020/05/13/politics/wisconsin-supreme-court-
strikes-down-stay-at-home-order/index.html)

~~~
dang
Changed from [https://www.jsonline.com/story/news/2020/05/13/wisconsin-
sup...](https://www.jsonline.com/story/news/2020/05/13/wisconsin-supreme-
court-overturns-stay-home-order-tony-evers-coronavirus-covid-19-public-
reacts/51878560). Thanks!

------
Grakel
What we should do is one thing. Saying the government can make us do it is
something else entirely.

~~~
arkades
There's a couple centuries of common law precedent that the government can
compel behavior for public health crises. The state supreme court here grossly
violated legal precedent, and will have its ass overturned in a heartbeat if
anyone has the time, resources, and will to escalate.

~~~
cryptonector
Yes, but there's much less support for Executives acting alone. We have a
republican form of government where only the legislative branch can pass
criminal statutes. In this case the Wisconsin Legislature sued to preserve its
powers and prerogatives, as well it should. That does not mean that it won't
be amenable to passing supporting statutes.

~~~
mullingitover
> Yes, but there's much less support for Executives acting alone.

The whole point of having an executive is for a single person to act alone and
decisively, especially in times of crisis. In the midst of an emergency is not
the time for legislative subcommittees to endlessly debate.

~~~
cryptonector
Actually, no. That would be a dictator. In American constitutional law the
Executive has rather limited powers.

~~~
mullingitover
> the Executive has rather limited powers

The US president has the power to unilaterally order a nuclear strike on any
point on the planet at any time they choose, regardless of how anyone in the
other branches feel about it at the time. So 'limited,' maybe, but also able
to end life on Earth as we know it on a whim.

That's an aside, however. I'm talking about the general concept of an
executive office, not specifically the US president. And sure, there can be
limits, but the whole point of an executive is to avoid endless deliberation
in the appropriate situations. Perfect example: Congress had the
constitutional power to manage tariffs, and they surrendered that power to the
president willingly because they weren't able to be decisive enough with it.

~~~
cryptonector
> The US president has the power to unilaterally order a nuclear strike on any
> point on the planet at any time they choose, ...

Not likely. The U.S. armed forces would not carry out such an order.

The President has a lot of military and foreign policy power, but not a lot of
domestic policy power. This thread is about domestic policy.

------
DenisM
[...] In the majority opinion, Roggensack determined Health Services Secretary
Andrea Palm should have issued regulations through a process known as
rulemaking, which gives lawmakers veto power over agency policies. [...] GOP
lawmakers who brought the lawsuit have said the legal challenge was necessary
to get a seat at the table where Evers and state health officials make
decisions about how to respond to the outbreak [...]

This is a fairly narrow decision, it only says the legislative must be
involved into this.

Alas it did not address the question I had hoped it would - do sheltering
rules violate the Bill of Rights?

~~~
duxup
>do sheltering rules violate the Bill of Rights?

Is an outstanding question about that?

There have been other pandemics, government actions to enforce health
standards and etc. I don't think they've been ruled to be unconstitutional.

~~~
SpicyLemonZest
Quarantine for people who are sick or known to be exposed is definitely legal.
But orders for _everyone_ to stay at home are pretty much unprecedented.

~~~
dragonwriter
> But orders for everyone to stay at home are pretty much unprecedented.

Orders prohibiting most gatherings for non-essential purposes (with essential
defined by the entity issuing the ruling), shuttering non-essential
businesses, etc., very similar to today's shelter-in-place orders were fairly
common in the 1918-1919 flu epidemic. They aren't at all unprecedented in the
US.

~~~
koolba
Internment camps and limiting who had the right to vote weren’t unprecedented
at that time either. That doesn’t make either acceptable by modern
interpretations of the constitution.

~~~
jdkee
Care to offer a citation for your claim?

~~~
Pfhreak
That there were internment camps in the US? There's a long history of moving
first people into concentration camps in the US, and FDR moved Japanese
Americans to concentration camps during WW2.
[https://en.m.wikipedia.org/wiki/Executive_Order_9066](https://en.m.wikipedia.org/wiki/Executive_Order_9066)

There are more recent examples as well from America that house immigrants and
prisoners from the Middle East.

~~~
dragonwriter
> That there were internment camps in the US?

I think the challenge is for evidence that the broad principle (either
internment camps or limitations on the franchise) conflicts with current
application of Constitutional law, rather than that the practice occurred in
the US.

> There are more recent examples as well from America that house immigrants
> and prisoners from the Middle East.

Yeah, that's a _weakness_ of the claim, not evidence for it.

------
noodlesUK
What is up with this website? I loaded it on my phone, it requested location
permission, which I denied, redirected, requested location again, and then
crashed.

~~~
martimarkov
I don’t even get the text of the article but I suspect it’s because I have
adblocker on

------
thrower123
There seems to be a deep unawareness on the part of some of these officials
that stupid draconian restrictions undermine their credibility and activate
the latent "fuck you, buddy" attitude that is a core part of the American
psyche.

We're already seeing just how much enforcement of any of these decrees
ultimately relies on the consent of the people to go along with it. Deploying
jackboots over closing beaches or not letting people buy seeds at Walmart
chews up legitimacy that will be needed as this thing goes on.

------
vmception
> The legislature may have buyer's remorse for the breadth of discretion it
> gave to (the Department of Health Services). But those are the laws it
> drafted

So although every state is different, Wisconsin isn't that different and its
Supreme Court did not rule on the law and only on feelings.

The majority opinion was across the ideological spectrum, the dissenting
opinion was across the ideological spectrum as well.

4-3 decision

One member of the court had just left the court, could have easily been 4-4 or
another combination

Interesting, Wisconsin

~~~
npongratz
> One member of the court had just left the court, could have easily been 4-4
> or another combination

The incumbent (Kelly) was voted out of office about a month ago, and the
winning challenger (Karofsky) won't fill the seat until August 1, 2020. Kelly
sided with the majority opinion in this decision.

~~~
kumarvvr
I don't understand that when the incumbent has been voted out, why does he/she
still have powers to make decisions?

Shouldn't they be some sort of stand-in and only take care of routine /
bureaucratic tasks?

It's a system that is ripe for making these already out people do stuff that
is ideological and hardline, while the voters obviously don't want it.

~~~
vxNsr
I'm more confused about a court that has an even number of members... what do
they do in ties?

~~~
albntomat0
They have 7. 1 will be replaced by another in August, based on a recent
election.

------
LatteLazy
Given that the stay at home order is unlawful and democracy has now been
restored, I am sure the court will be open today, all judges present and
hearing arguments in front of a packed public gallery. I also look forwards to
the republicans who brought the case attending the senate building and sitting
for extended hours to sort out this issue.

------
wonderwonder
The way the United States has handled this has been awe inspiring in its
incompetence. We had our first identified case on the same day as S. Korea.
Our death rate is currently 254 / million vs S. Korea's rate of 5.

Our federal leadership is saying that we should both open up and not open up
at the same time. Its encouraging protesters that are protesting for the
disobedience of the guidelines that it released. We refused functioning tests
from other nations that worked in order to produce our own. This cost valuable
time and resulted in a first round of testing that did not work, costing more
time.

Businesses are shuttered by government edict forcing them to furlough or lay
people off. Those people are now forced to sit at home without income or any
job prospects while the government that required it continues to get paid and
states that no further stimulus or funds to individuals is really needed while
stating that the $1,200 some limited subset of people got should last 10
weeks. At the same time this government is actively working to reduce food
subsidies and health care options not tied to employment.

We have state governments using their national guard to protect their ppe from
seizure by the federal government. The federal governments response has been
rife with cronyism and self enrichment. State level unemployment has been a
massive failure.

We now have the federal government stating that citizens are warriors and
encouraging us to willingly fight and die with a virus? Scientists whose job
it is to provide public information and policy are actively derided. Talking
heads are actively calling the number of deaths a hoax and panning a
reasonable response.

We could have just shut down in the beginning, the government could have use
the DPA to mass produce PPE and the existing tests while providing people with
at least a minimum UBI. They could have quickly reached a point where we are
able to test people each day as they walk into the office if in person work is
required. If the test is failed the individual must self isolate for x days
and can return to work once they test negative. Federal government guarantees
the persons job while they are sick and pays the salary so the employer does
not suffer. We could have had this thing fully contained and been back up and
running in a couple of months.

Instead we appear to have seen the stock market fall, thrown our hands up in
the air and cried that it is too hard.

Rant over. I am just very frustrated that it appears we may have endured all
of this for nothing due to terrible management.

~~~
bagacrap
actually people are sitting at home getting paid more to sit than they were to
work, and the government is not getting paid --- it's losing massive tax
revenue.

------
avs733
If you are. Curious about the actual hearing that led to this, which I read as
more intellectually honeston the part of the jurists than the ruling, slate
has a nice summary with extensive quotes.

[https://slate.com/news-and-politics/2020/05/wisconsin-
suprem...](https://slate.com/news-and-politics/2020/05/wisconsin-supreme-
court-lift-covid-restrictions-fox-news.amp)

------
anoraca
It is shocking to me that someone like this could be appointed to and then
elected to a state Supreme Court:

Bradley's homophobic writings that she wrote in the Marquette University
student newspaper in 1992 while an undergraduate stirred controversy during
the race.[8][9] She had written letters to the editor and a column for the
Marquette Tribune, in which she stated she held no sympathy for AIDS patients
because they were "degenerates" who had effectively chosen to kill themselves.
She also referred to gays as "queers".[10][11] She called the plurality of
Americans who voted for Clinton "either totally stupid or entirely evil".[12]
She blasted supporters of abortion as murderers, and compared abortion to the
Holocaust and slavery.[10] She attacked feminists as "angry, militant, man-
hating lesbians who abhor the traditional family" and defended Camille Paglia,
who had written in a 1991 column that "women who get drunk at frat parties are
'fools' and women who go upstairs with frat brothers are 'idiots'."[13]
Bradley wrote that Paglia had "legitimately suggested that women play a role
in date rape."[13] Bradley apologized for her student writings in 2016,
shortly after they had stirred controversy.[14]
[https://en.wikipedia.org/wiki/Rebecca_Bradley_(judge)](https://en.wikipedia.org/wiki/Rebecca_Bradley_\(judge\))

~~~
dopamean
Less shocking when you know Scott Walker picked her.

------
BooneJS
I got one will continue to work from home in Wisconsin and let all of the lab
rats head to the bars.

------
BrooklynDocks
As someone who lives in New York right now, I can tell you that this is a
terribly dangerous decision.

~~~
bagacrap
is there some secret info only New Yorkers are privy to?

In case it wasn't obvious, Wisconsin is not New York. People drive cars rather
than packing onto crowded subways. The transmission rate for the virus is
going to be much lower there. The curve is naturally flatter.

------
hindsightbias
I guess we’ll see if the US Constitution is a suicide pact.

------
_curious_
"Without legislative review, “an unelected official could create law
applicable to all people during the course of COVID-19 and subject people to
imprisonment when they disobeyed her order,” the majority wrote. "

Sounds like legitimate reasoning for their decision, no?

