As the coronavirus pandemic unfolded, states across the country began imposing strict lockdown orders in an effort to slow the spread of disease, with some of those edicts ultimately being challenged in the courts.
That’s the case in Wisconsin, where one of the state’s Supreme Court justices just drew a parallel between coronavirus restrictions and a very dark chapter in American history, according to Law & Crime.
Wisconsin lockdown order challenged
Republican legislators in the Badger State filed a lawsuit contending that State Health Secretary Andrea Palm had no authority to order the closure of businesses that she deemed non-essential.
Among those hearing the case was Justice Rebecca Bradley — and judging from her comments during oral arguments, she has no sympathy whatsoever for Palm’s position.
“My question for you is, where in the Constitution did the people of Wisconsin confer authority on a single unelected cabinet secretary to compel almost six million people to stay at home and close their businesses and face imprisonment if they don’t comply — with no input from the legislature — without the consent of the people,” Bradley asked Assistant Attorney General Colin T. Roth, according to The Hill.
“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?” she went on. “Where does the Constitution say that’s permissible, counsel?”
In response, Roth argued that the Wisconsin Department of Health Services is permitted by legislation to “implement all emergency measures to control communicable diseases.”
Justice draws stark comparison
However, Republicans argued that the criminal penalties Palm threatened to impose were themselves an example of unlawful rulemaking, and Bradley seemed to agree. She then went on to cite another instance in which the rights of Americans had been unconstitutionally curtailed.
“One of the rationales that we’re hearing justifying the Secretary’s order in this case is that, ‘well it’s a pandemic and there isn’t enough time to promulgate a rule and have the legislature involved with determining the details of the scope of the Secretary’s authority,” she noted, according to Law & Crime. The judge went on:
I’ll direct your attention to another time in history — in the Korematsu decision — where the [Supreme] Court said the need for action was great and time was short, and that justified, and I’m quoting, assembling together and placing under guard all those of Japanese ancestry in assembly centers during World War II.
The justice further asked, “Could the Secretary, under this broad delegation of legislative power, order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?”
Roth answered that the constitutionality of whatever power had been granted to the department by the legislature was subject to judicial oversight.
The outcome of this case may well be a harbinger of things to come in similar court challenges being lodged in states nationwide — but it remains to be seen how this panel will ultimately rule.