Recent court decisions to lift the COVID-19 restrictions in Wisconsin and Oregon have focused on abstruse questions of legal interpretation. In both cases, however, there is also evidence that the rule of law is invalidated during a health emergency. Government officials have placed unprecedented restrictions on our freedom and livelihoods so that they can do what they deem necessary to protect the public from a potentially deadly disease. For starters, the courts that gave the government answers on CO VID-19 have begun to recognize that public health powers, while broad, are not a blank cheque.
The Wisconsin case involved a dispute between two parts of the state’s government: Republican leaders in both state legislatures argued that the Democrat – headed by a Democrat in the Wisconsin Department of Health – was exercising powers granted to him when he ordered the closure of nonvital businesses and barred residents from their homes for purposes outside their approved purposes, threatening fines and jail time for violations.
The Wisconsin Supreme Court concluded last week that Palin’s order qualifies as an “emergency rule,” meaning he could enforce it only if he followed an emergency rule he admitted ignoring. This case was not just a partisan dispute, but raises the question of whether an individual executive officer can unilaterally criminalize legal conduct based on his belief in the need to protect public health.
Pal argued that his order was authorized by a law that allows his department to authorize and implement the use of emergency rules to control communicable diseases. This procedure, wrote Presiding Judge Patience Roggensack in the majority opinion, constitutes a standard that prevents arbitrariness and oppression by those in power, and ensures that controlling and subjective judgments pronounced by unelected officials are not enforced in Wisconsin.
In the Oregon case, U.S. District Court Judge Matthew Shirtcliff concluded that Governor Kate Brown had violated the law she cited. By law, such orders cannot last more than 28 days, Shirtcliff said in his ruling Monday. As Justice Daniel Kelly noted in a concurring opinion, this broad interpretation removes the distinction between the legislative and executive branches.
The principle at stake is crucial: whether or not you agree with the decision that politics has overridden a decision, the principle that government officials are bound by the law even in emergencies, especially emergencies.
Blacklock said earlier this month: “Tolerating unconstitutional executive orders in emergencies for convenience or fear leaves the Constitution open to legal challenge at a time when it is most needed. According to Blacklock, whether the COVID-19 control measures can pass this test depends on new information about the epidemic. Governments that take the extraordinary step of suspending the freedom of free people during a health emergency should welcome the opportunity to demonstrate in their actions that the measures they choose are appropriate to address a threat of overwhelming severity. They should also be expected to show that less restrictive measures, if any, cannot adequately address the threat.
If the threat is known and the response is less restrictive or targeted, a greater proportion of the burden on constitutional freedom can withstand judicial review.
I have no doubt that officials like Palm and Brown sincerely believe that they are just doing their job. Fortunately, these judges have started to do their job, and I have little doubt about their commitment to public safety.