By M.D. Kittle
MADISON — In a 4-3 ruling, the Wisconsin Supreme Court on Friday took power from the people and handed it over to unelected health bureaucrats.
And once again, the pivot from liberty to tyranny turned on “swing vote” Justice Brian Hagedorn’s deference to the state executive.
The decision finds Wisconsin law gives local health czars unilateral power to restrict public gatherings, issue wide-ranging quarantines, or just about anything they deem necessary to check communicable diseases. They don’t need approval from local elected officeholders to push their power.
The ruling follows legal battles over orders issued by Janel Heinrich, director of Public Health Madison & Dane County, banning indoor gatherings and sporting events amid the COVID-19 outbreak. Citizens in Madison and Dane County have been forced to live with some of the most stringent public health restrictions over the run of the pandemic, based on extreme parameters set by an agency that doesn’t answer directly to voters.
A lawsuit filed on behalf of parents by the Wisconsin Institute for Law and Liberty argued the order, issued in November 2020, had the effect of canceling Thanksgiving gatherings and indoor sporting events. In doing so, it violated constitutional rights of freedom of assembly and basic laws on separation of power.
But Heinrich stressed she had such unilateral power under state law allowing public health officials to “take all measures necessary to prevent, suppress and control communicable diseases.” Bureaucrats have interpreted “all measures” to mean the freedom to violate individual liberties protected under the constitution.
The Supreme Court’s majority opinion, written by liberal judicial activist Justice Jill Karofsky, agrees with those bureaucrats. She asserts “the legislature’s words alone would grant sufficiently broad authority for a local health officer to act via an order.”
In a stinging dissent, conservative Justice Rebecca Grassl Bradley argues the essential liberties of the people cannot simply be delegated away by the people they elected to guard those freedoms.
“Should others attempt to rule over the people, their actions are beyond the law, even if they bear the imprimatur of a legislative body. Legislators have no power to anoint legislators; only the people do,” Bradley wrote. “The majority misunderstands first principles and ignores the plaintiffs’ principal and most persuasive argument.”
The Justice points to Article IV, Section 22 of the Wisconsin Constitution, which states:
“The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.”
Within the founders’ recognition of the non-delegation principle, Dane County elected officials were wrong in turning over their legislative authority to the unelected bureaucrat leading the health department.
“Because the people decide who may create the laws that will bind them, those to whom power has been delegated may not give it away,” Bradley wrote. That applies in times of health crises, too, as courts have repeatedly found.
In siding again with the liberals on the court, Hagedorn — elected under the guise of his conservative, originalist reading of the law — shakes off the constitution in favor of handing outsized power to the executive branch, to the administrative state.
“It is unfortunate once again that Justice Brian Hagedorn joined with the three extremely liberal justices to empower unelected public health zealots with vast powers to violate the liberty and constitutional rights of every citizen in Wisconsin through the fiat of local public health orders,” said Sen. Steve Nass (R-Whitewater).
Nass said the ruling opens the door for extreme abuse by local public officials in the coming weeks and days, but the decision can be “overturned early in 2023 by the Republican Legislature and a new Republican governor.”
“The existing flawed state statutes relating to local public health departments must be repealed and that can only be achieved if Wisconsin has a new governor in 2023,” the senator said.