Empower Wisconsin | May 15, 2020
By M.D. Kittle
MADISON — It came as little surprise that the Wisconsin Supreme Court’s liberal wing disagreed with Wednesday’s majority ruling striking down the Evers administration lockdown.
Justices Ann Walsh Bradley and Rebecca Dallet have shown numerous times that they’ll ignore the constitution to protect their liberal allies. In this case, they stood up for the unchecked power of a liberal executive branch and against civil liberties. Rest assured, they would have been champions of the constitution had former Gov. Scott Walker been in power and his administration had issued the same overreaching emergency orders.
What concerns many constitution-first conservatives, however, is Justice Brian Hagedorn’s dissent of his fellow conservative’s ruling. One legal expert called Hagedorn’s dissenting opinion “lawyerly.”
The justice argues that the case, Wisconsin Legislature v. Palm, is not a “battle over the constitutional limits on executive power.” It’s about whether the Department of Health Services Secretary-designee Andrea Palm has the authority to issue a sweeping emergency order — with criminal penalties — without first promulgating it, a process that requires legislative oversight.
True, the case on its face is not a constitutional challenge — but the constitution is at its core, according to the majority.
Conservative Justice Rebecca G. Bradley took her colleague to task, writing that Hagedorn’s argument lacked “constitutional analysis,” and that it “affirmatively rejects the constitution, and subjugates liberty.”
As Bradley points out, all governmental power derives “from the consent of the governed.” Government officials may act only within the confines of the authority the people give them.
“The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it,” Bradley wrote. That’s why the people created three co-equal branches of government.
“However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance,” the justice wrote.
Palm “arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process…” The dissenters, in short, insist the law gave Palm such broad authority. Even if that is the case, the law would be unconstitutional.
Statutory law is subordinate to the constitution, Bradley said.
“Spurning more than two centuries of fundamental constitutional law as well as the Wisconsin Constitution’s guarantee of liberty, Justice Brian Hagedorn shockingly proclaims ‘the judiciary must never cast aside our laws or the constitution itself in the name of liberty.’”
She asserts Hagedorn’s 53-page opinion “contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty.”
Rick Esenberg, president and general counsel for the Wisconsin Institute for Law and Liberty, said to some extent, Hagedorn is making a “lawyerly” dissension.
“What Justice Hagedorn was saying is that the Legislature didn’t raise the constitutional issue,” Esenberg said. “I think he was making a distinction in a way that he didn’t have to address those constitutional issues, but read the statute as it is.”
WILL filed an amicus brief arguing that the Evers administration overstepped its constitutionally-granted authority.
In many ways, Hagedorn’s approach is what conservative jurists have favored, a reading of the law as written.
But Bradley argues reading the law as written fails when the law violates the constitution.
“The Wisconsin Constitution IS the law — and it reigns supreme over any statute,” the justice wrote.