Some curious photos began rocketing around social media sites Wednesday night —pictures of people in Wisconsin once again in their natural habitat, crammed shoulder-to-shoulder in bars.
Fortunately, the patrons were not drinking shots of flaming Lysol or Cloroxtinis. Unfortunately, there were no masks to be found, and the only thing drinkers were distancing from were their inhibitions. Just hours earlier, the Wisconsin Supreme Court had struck down a statewide “safer at home” order that, among other things, closed “nonessential” businesses and ordered people to stay in their homes, with limited exceptions. The order itself was fairly standard for states across America.
For weeks, Republicans argued their lawsuit against the order was needed simply so the Legislature could have some say in the reopening plan. “We don’t want a Democratic plan or a Republican plan, we want a Wisconsin plan where we’re all working together,” Assembly Majority Leader Jim Steineke said May 7.
But now it appears their plan all along was to thwart any plan. Now that they’ve been granted a seat at the table, they have set the table on fire and thrown it out the window.
GOP argued Dem order was confusing
The governor’s unilateral “safer at home” order was set to expire May 26, at which point a gradual reopening would continue to take place. (Some business restrictions have already been lifted.)
But Republicans in the state Legislature challenged the order, complaining that the governor, through his Health Secretary-designee, had both cut them out of the process and exceeded his authority. So they took Democratic Gov. Tony Evers to court, emerging victorious on Wednesday.
The ruling leaves Wisconsin without any statewide rule or guidance in place for businesses, citizens, and local governments. After the decision, Republicans said they didn’t see any need for any new rules, instead turning the state into a patchwork of local COVID-19 regulations, stretched throughout nearly 2,000 counties, cities, villages, and towns. (Ironically, in the lawsuit, GOP attorneys argued that the statewide order was confusing — but without the order, every local government may now have different regulations and expiration dates.)
The Dairyland Brew Pub opens to patrons on May 13, 2020, in Appleton, Wis.
This is all taking place in a state that has weathered a decade of all-out partisan war, dating back to the days of 2011 when tens of thousands of people occupied the state Capitol protesting Republican Gov. Scott Walker’s plan to virtually eliminate public sector collective bargaining. After an attempt to recall Walker failed, state politics has grown more bitter, culminating in Republicans forcing citizens to vote in-person during a spring election on April 7.
False choices: Protesters should demand coronavirus safety and a reopened economy. We can have both.
The lawsuit itself was itself based on a preposterous argument: The Legislature argued that the health secretary’s “order,” which, according to state statute does not require legislative oversight, was instead a “rule,” which can be vetoed by lawmakers. But the extremely broad state statute granting the executive branch emergency powers explicitly separates the two, saying the department “may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease” (my emphasis.) In fact, the Legislature specifically added the authority for the governor to issue unilateral orders back in 1982, when the state was grappling with the rapid spread of AIDS.
Basically, the Legislature argued in favor of disregarding a law passed by … the Legislature.
Rush to bars doesn’t inspire hope
Nonetheless, as pointed out by liberal Justice Rebecca Dallet in her dissent, four conservative members of the court who won elections by campaigning against the idea of judges writing new laws went ahead and wrote a whole new law merging “orders” with “rules.”
“A majority of this court falls hook, line, and sinker for the Legislature’s tactic to rewrite a duly enacted statute through litigation rather than legislation,” wrote Dallet, adding that “This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history.” (One conservative justice, Brian Hagedorn, sided with the liberal judges in the three-justice minority.)
Coronavirus pause: People need people, but it’s risky to resume social activities so soon
Having been abandoned by the state, at least 17 communities immediately instituted stay-at-home orders of their own to continue the success the state has had in mitigating the damage of the virus. But on Friday, despite an attorney general opinion that said local governments do have the power to issue such orders as long as there are no criminal penalties attached, at least eight local governments rescinded their orders, leaving their communities unprotected. (The state’s two largest cities, Milwaukee and Madison, kept their regulations, believing they are lawful.)
Ultimately, it is now up to the state’s citizens to practice responsible distancing, wear masks, and take other necessary precautions. But the rush to get back to the bars does not inspire confidence that everyone will be taking this seriously enough. At the end of a long night of drinking, beer goggles no doubt make COVID-19 look pretty enticing.
Christian Schneider, who lives in Madison, Wis., is a senior reporter at The College Fix and author of “1916: The Blog.” Follow him on Twitter: @Schneider_CM
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This article originally appeared on USA TODAY: Wisconsin coronavirus reopen: Chaotic, risky and judges wrote a new law