Part Six: SHOVELING OUT FROM THE COVID STORM: Wisconsin’s Approach to COVID-19

by Jacques C. Condon

Part Six, with this and other posts raising issues worth considering in addressing Wisconsin’s response to COVID-19, also known as the coronavirus pandemic.

 

PART SIX: Shoveling Out From The COVID Storm

SNOW STORM BLINDERS

Wisconsinites know that often a winter storm may blanket portions of the State, not all, and sometimes, particularly this time of year, it may be of such slight amount and duration to be but a temporary inconvenience.

Case in point: in my school district, snow days are “built-into” the schedule although, this year, there were none, yet last year there were many.

And before jumping completely off the storm analogy, note that Wisconsin has in place, legislatively, a number of laws to address contagions, all of which have been on the books for some time — your snow plows of virus control.

For example, did you know that there is an entire statutory section on communicable disease, Section 252 of the Wisconsin statutes. https://docs.legis.wisconsin.gov/statutes/statutes/252.pdf Portions of the act date to the early 1980’s, while larger portions appeared beginning in 1993.

The statute is broadly worded. According to Wis. Stat. § 252.02(3) and (4), the legislature, in its wisdom, has granted DHS with the power to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” and promulgate and enforce rules or issue orders “for the control and suppression of communicable diseases” amongst those “infected or suspected of being infected”.

DHS has then enacted its own administrative rules, found in Chapter DHS 145, as related to communicable disease. https://docs.legis.wisconsin.gov/code/admin_code/dhs/110/145.pdf The Appendix to that chapter specifically includes “Severe Acute Respiratory Syndrome-associated Coronavirus (SARS-CoV)” as included within its purview.

https://docs.legis.wisconsin.gov/code/admin_code/dhs/110/145_a.pdf

At the same time, the Constitution of the State of Wisconsin has granted the legislative body the power to enact the State’s laws, via bill, and other restrictions on government action on such things as the taking of property, infringing upon a person’s “liberty of conscience” when it comes to religion, or even due process in criminal proceedings. https://docs.legis.wisconsin.gov/constitution/wi

Moreover, the Constitution of the United States has its own due process provisions as applied to the States, more particularly found in the Fourteenth Amendment, where “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

FEDERALISM AT WORK

So how are these rights reconciled with Governor Evers’ order that closed businesses, playgrounds, and non-essential functions that the executive branch deemed non-essential?

This question raises an interesting question of federalism.

In fact, two years ago I wrote a blog that addressed the President Trump’s actions related to immigration and the lawsuits that followed, titled “From Immigration to Executive Orders to Judicial Review: Miracle or Not. https://law.marquette.edu/facultyblog/2017/02/from-immigration-to-executive-orders-to-judicial-review-miracle-or-not/

And, coming full-circle, what is fascinating in the immigration saga is how, politically, the response from some of the States in those cases was ideologically (and argumentative) flipped from the response to COVID-19.

It makes you think that sometimes prior acts, politically, can actually come back to haunt you later-on.

For instance, in the immigration context, the Trump administration issued multiple executive orders, closing immigration from certain countries for a limited period — 90 days — with exceptions, an act that sounds familiar to a 30 day shutdown, say to April 24, with exceptions, doesn’t it?

The justification argument, by the President’s side, was that such immigration measures were bestowed upon the President by Congress, see statutes such as 8 U.S.C. § 1182(f), among others, but were also based on Presidential authority over foreign affairs and national security.

In contrast, multiple states opposed the President’s executive orders — and sued — asserting, among other things, that the orders would disrupt and would add cost to their state colleges and universities, would disrupt medical institutions, and would diminish tax revenue.

In the immigration context, while the legal skirmishes persisted for some time, ultimately the Trump administration modified some orders, many of the issues were rendered moot, and the Court’s proved, unfortunately, to be an inexpedient (and often inconsistent) remedy for either side.

But the larger picture is that such skirmishes have perhaps explained why there has been a dearth of challenge to the orders issued by State-based governors in response to COVID-19.

In other words, you have individual states enacting “emergency” powers within their boundaries, a lack of uniformity among such acts, and the federal government, as of now, waiting things out from a federal-policy level.

For now. The Trump administration sent a letter to the States’s governors, yesterday, advising that new guidelines were coming — expecting that theses guidelines will be more community based as opposed to rendering orders across an entire swath of the population.

Stay tuned on this one.

Furthermore, the immigration cases involved the States against the Federation, with the COVID-19 response likely headed toward a federation-based policy against some States.

What happens when the federal government proposes a limited re-opening of business with new guidelines to match — when this happens, will Wisconsin continue to say, no, or even explain why?

THE SHOVEL

What all this means is that the Governor’s response, the Governor’s Order, and the near future — on what will happen in Wisconsin — have been placed squarely in one office.

And this office will be tasked of determining both whether to shovel out and, based on the data, what are we actually shoveling out from.

Indeed, we know we’re shoveling out everyday restrictions, but we’re also shoveling out Governor Evers’ “Safer At Home” Order where he outlined the snow storm of restrictions on Wisconsinites.

Per the Order, people are not to gather, at all.

Where prior guidelines called for gatherings of 500, then 50, then 10, the current Order is that “[a]ll public and private gatherings of any number of people that are not part of a single household or living unit are prohibited” (emphasis added).

Exceptions exist, but this is the Order unless there is an exception.

Similarly, “[a]ll forms of travel are prohibited, except for essential travel as defined in the Order.”

Equestrian activity or all recreation, generally, have not been identified, by name, as an exception for travel, but certain activities, such as basketball and playgrounds are “banned”.

Conversely, exceptions are plenty, including an exception for the caring of animals; most would likely fall within an exception.

To be sure, two questions can be raised. First, with so many exceptions, is the Order worth the paper it’s written on, and, second, with such a broad-based application, can it really go on for the next 3+ weeks, unchecked?

If you sense another blog post coming, you’re right — working on it.

 

Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.