Vos and Fitzgerald’s flimsy case against ‘Safer at Home’

They aren’t just seeking any old seat at the table, they want a throne

two golden thrones
Throne Room, Lisboa, Ajuda Palace by Wirdung. (CC BY-SA 3.0)

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald have presented a flimsy and dangerous case for overturning the Department of Health Services’ extension of the “Safer at Home” order to May 26.

Vos and Fitzgerald somehow feel they’re better equipped to make this determination than the public health experts at the Department of Health Services (DHS). Yet it is the job of the head of the DHS to issue such orders during a pandemic.

When they petitioned the Wisconsin Supreme Court on April 21 to hear their challenge to the extension, Vos and Fitzgerald wrote that “the Legislature, through its Joint Committee for Review of Administrative Rules,” should have “a seat at the table.”

But they aren’t just seeking any old seat. They want the throne!

As they put it, they want “the opportunity to review Emergency Order 28 and suspend it.”

In issuing that emergency order, DHS Secretary-designee Andrea Palm, used her explicit statutory authority, explaining  that “when deciding whether to extend the Safer at Home Order, the administration considered the rate of spread of COVID-19 in Wisconsin; the health care capacity to meet the needs of the state; the testing, contact tracing, and isolation capacity in the state; the availability of personal protective equipment for healthcare workers, first responders, and other public servants that are required to perform face-to-face services; and the economic needs of Wisconsin and Wisconsinites.”

Wisconsin statutes are absolutely clear on this matter. “The department may authorize and implement all emergency measures necessary to control communicable diseases,” the relevant statute states . “The department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics… The department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease.” (Emphasis added.)

The Division of Public Health is composed of epidemiologists and other experts who are closely connected to the Centers for Disease Control and Prevention, the World Health Organization, and an organized network of local public health departments. They deal with communicable diseases and how to prevent their spread every single day. They have quick access to the facts and the ever-evolving best-practices and science.

This is why—going back decades—the Legislature empowered DHS to take quick actions to ward off communicable diseases by issuing orders.

Vos and Fitzgerald don’t have a team of epidemiologists at their disposal. They are not equipped, nor is the Joint Committee for Review of Administrative Rules equipped, to efficiently or expertly consider and advance emergency orders during a pandemic. And yet Vos and Fitzgerald insist that DHS should come to them first and should promulgate rules for them to approve about how to handle the pandemic.

This is contrary to our Wisconsin public health statutes, and to the Wisconsin Constitution, which grants the governor the power to “transact all necessary business.”

It is also contrary to the entire framework of government in the United States, which intentionally gives the executive branch the power to act swiftly in a crisis.

Here is Alexander Hamilton in Federalist 70: “Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws.”

Berkeley professor John Yoo, who was a prominent lawyer in George W. Bush’s Justice Department, cited this Hamilton quote in a recent article for the conservative American Enterprise Institute. He concluded: “The coronavirus, with its foreign origin and its rapid spread through our population, is precisely the type of crisis for which executive action is most suited.”

But Vos and Fitzgerald don’t get it. In their petty attempt at yet another power grab, they are putting the health of Wisconsinites at grave risk.