Empower Wisconsin | May 15, 2020
By M.D. Kittle
MADISON — Gov. Tony Evers and his power-grabbing health chief are pushing rules that aim to re-close the state of Wisconsin.
On Thursday, Evers sent notice to his agency heads that he approved an “emergency statement of scope” by the Department of Health. The statement gives DHS authority “to establish protections for Wisconsin citizens by maintaining appropriate social distancing or other measures to slow and contain the spread of COVID-19 and protect health and safety.” The statement also is supposed to, as the governor puts it, turn the dial to reopen Wisconsin’s economy.
Actually, what it does is layout the broad powers Team Evers and his DHS Secretary-designee, Andrea Palm, believe they have under Wisconsin’s public health emergency statutes. And, while the agency just began the process of promulgating “new emergency rules to address” COVID-19, it seems clear they want control back.
The scope statement notes the Wisconsin Supreme Court’s 4-3 ruling this week that struck down the Evers administration’s lockdown. The majority opinion agreed with the Republican-led Legislature that DHS failed to follow the law. Palm’s extended stay-at-home order issued last month was a rule subject to the emergency rule-making process established by the Legislature.
But the majority opinion also noted the constitutional concerns of such sweeping power — to ban travel, shut down “nonessential” businesses, even prohibit in-person religious services — in the hands of one unelected bureaucrat.
Palm’s scope statement effectively says, okay conservative majority you want this agency to promulgate, we will; but we ain’t giving up any power.
Under emergency statutes, DHS is “explicitly delegated the authority” to create rules “as necessary” for the control of communicable diseases, the scope statement insists. To that end, the agency has “clear, broad, and explicit authority to close schools and forbid public gatherings in schools, churches, or other places.”
Furthermore, DHS asserts, there’s no “bright-line rule” as to the limitations Palm and her department can place on gathering sizes or on “the places where such limits may be put into effect.”
“Instead, DHS is authorized to impose such controls to the extent DHS finds they are necessary to ‘control outbreaks and epidemics,’” the scope statement states. “DHS is further granted the explicit authority to implement all other emergency measures necessary to control communicable diseases, and DHS has explicit authority to make its rules applicable to the whole or any specific part of the state.”
The document is dripping with an unbridled lust for power over the people and commerce of the state — in the name of public safety. If DHS doesn’t retake control, the agency insists, COVID-19 infections will quickly spread, people will die, and the state’s health care resources will be swamped.
As of Thursday, there were 434 reported COVID-19-related deaths. As we’ve learned over these dreadful 2 1/2 months, the vast majority of people who contract the virus recover, and the vast majority of cases involve people suffering from underlying medical problems.
The question is, can Evers and DHS simply ram their new rule — same as the old order — down the throats of Wisconsin residents again without some oversight from the Legislature?
Rick Esenberg, president and general counsel of the Milwaukee-based Wisconsin Institute for Law & Liberty, said he doesn’t think so. He said the Legislature, through the Joint Committee for Review of Administrative Rules, has oversight authority even in the promulgation of emergency rules.
“It can call for a public hearing, it can suspend the rule,” Esenberg said.
The Wisconsin Legislative Council notes as much in an issue brief recently released. The process includes a 10-day waiting period.
“…. (E)ither JCRAR co-chair may, in writing, direct the agency to hold a preliminary public hearing and comment period on the scope statement,” the document states.
DHS disagrees. It insists it can promulgate its rule “without complying with the notice, hearing, and publication requirements … if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.”
State statute 227.136 (1), says otherwise, however.
DHS insists a key goal of its new rule will be “turning the dial toward reopening the economy.” Of course, it notes Evers’ Badger Bounce Back plan, a painfully slow and loosely defined initiative to re-start Wisconsin’s economy and re-open the state. It has been widely criticized by the business owners the governor’s lockdowns have forced out of business and many of the 500,000-plus workers his orders have displaced.
Urgent rule crafting
The scope statement notes DHS will proceed as quickly as possible to develop the rule.
“DHS estimates it will take an indeterminate number of hours to develop this emergency rule due to the novel situation and the constantly changing and uncertain nature of the pandemic,” the document states.
But note, that’s hours, not days. Team Evers wants its power back — and fast.
The agency does say the rule will include continued social distancing and “other measures” may be necessary going forward to control the spread of COVID-19 “and ensure the health, safety, and welfare of the people of Wisconsin.”
“Entities that may be affected include the following: Wisconsin residents, at large; Wisconsin businesses and non-profit organizations; Wisconsin schools and universities; libraries; public health operations; first responders; tribal and local governments; and the health care industry,” the document states.