Laws are a dead letter without courts to expound and define their true meaning and operation. —Alexander Hamilton1
On May 13, 2020, the Wisconsin Supreme Court ruled that Department of Health Services (DHS) secretary Andrea Palm’s lockdown order (Emergency Order 28) was “unlawful, invalid, and unenforceable.”2 The decision immediately freed Wisconsinites to again go about their lives and to reopen businesses that the order had declared “nonessential.”3 Although the court’s ruling is a partial victory for freedom, it falls short of making a principled stand for individual rights.
Several justices did engage in a crucial debate on the fundamentals of America’s political philosophy, but this was relegated to an addendum of five opinions issued with the ruling. The ruling itself was made primarily on the basis of a technical distinction between “orders” and “rules.” This, in turn, appears to have been decided on a poor interpretation of Wisconsin laws and precedents, tainting the ruling with malfeasance and partisan rancor. It didn’t have to be this way.4
The job of supreme court justices is to render decisions based on their full understanding of the law. So it is a shame that the best arguments for striking down Palm’s lockdown order were buried in the concurring opinions of Justices Rebecca Bradley and Daniel Kelly. These arguments unearthed a longstanding dispute between two fundamentally opposed political philosophies: on the one hand, the founding vision of a government limited to the function of protecting rights; and, on the other, the “Progressive” dream of an expansive administrative state.
Quoting theorists and architects of America’s founding—including Thomas Jefferson, James Madison, John Locke, and William Blackstone—Bradley made a rousing case for freedom, stating that “Under the Wisconsin Constitution, all governmental power derives ‘from the consent of the governed’ and government officials may act only within the confines of the authority the people give them.” However, “[t]he 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,” and “[w]henever any branch of government exceeds the boundaries of authority conferred by the people, it is the duty of the judicial branch to say so.”5
Both Bradley and Kelly remind us that the founders viewed the separation of government powers among various branches—each with certain means of holding the others in check—as essential to preventing tyranny. Bradley writes,
Blackstone—whose conception of the separation of powers “profoundly influenced” the Founders—“defined a tyrannical government as one in which ‘the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men,’ for ‘wherever these two powers are united together, there can be no public liberty.’”6
Both justices argue that no branch of government can delegate its powers to another branch because doing so would concentrate too much power in a single branch. In this case, that means that even if the legislature had delegated its power of making law to the DHS (a body within the executive branch), such an authorization would be unconstitutional. Kelly concedes that this non-delegation doctrine, as it’s known, is widely viewed as a dead letter, no longer enforced in the American judicial system. He argues, though, that this is so “not because we [Wisconsin judges] never recognized it or outright rejected it, but because we allowed it to fall into desuetude. To the extent that has happened, we have been derelict in our duties.”7
Indeed, this founding principle was tossed aside during the “Progressive” era, when Theodore Roosevelt, Woodrow Wilson, FDR, and the burgeoning left sold the American people on gradual but fundamental changes to American political philosophy.8 Having “progressed” beyond the checks and balances that buttressed rights-protecting government, “Progressives” were free to erect America’s administrative state—an alphabet soup of agencies led by unelected bureaucrats empowered both to make rules and enforce them.9 By the 1930s, many (if not most) politicians and judges had left the non-delegation doctrine for dead.
So it’s heartening to see Bradley and Kelly working to revive it. Nonetheless, in this case, their non-delegation arguments are unconvincing because they do not reconcile them with the practice, going back to the founding and earlier, of granting leaders—particularly governors—special emergency powers.
As much as America’s founders detested concentrating political power in a single person or body of men, they learned firsthand during the Revolution that deliberative bodies (such as the Continental Congress) sometimes are inadequate for handling emergency measures, such as raising and equipping armies. As governor of Virginia—one of the few colonies that did not grant governors robust emergency powers during the Revolutionary War—Jefferson was hamstrung, sometimes unable to raise a quorum to make decisions. More than once, he effectively was forced to flee as redcoats marched on the capitol.10 Such embarrassments motivated Alexander Hamilton, among others, to argue that executives must have increased power during wars and other emergencies. In “Federalist No. 28,” he wrote:
When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.11
How could Bradley and Kelly have reconciled the non-delegation doctrine with the emergency powers now embedded in state laws (including Wisconsin’s, which expressly give the governor broad powers to respond to public health emergencies)?12 Virginia statesman and American founder George Mason said, “No free government, or the blessings of liberty can be preserved to any people, but by frequent recurrence to fundamental principles.” We can reconcile competing legal doctrines only by reference to their ultimate standard and purpose. That properly means referencing the most fundamental of political principles: individual rights. A political doctrine is morally valid only insofar as it aids in the protection of individual rights.
There is a famous quote, often ascribed to Albert Einstein, which says: “If I had an hour to solve a problem and my life depended on the solution, I would spend the first fifty-five minutes determining the proper question to ask . . . for once I knew the proper question, I could solve the problem in less than five minutes.” Although several of the Wisconsin Supreme Court justices made commendable efforts to find the right questions, ultimately, they did not go fundamental enough. Instead of asking “Did the health secretary exceed a particular statutory power?” or “Did the legislature unconstitutionally grant DHS too much power?,” they should have asked, “Given that the DHS does have emergency powers, did the health secretary use this power to protect or to violate individual rights?”
If the court had asked the litigants to brief them on this question and had investigated it adequately, it’s likely their answer would have been that her order violated rights. A government’s job of protecting rights may legitimately entail quarantining carriers of lethal and highly contagious diseases, but not locking down the healthy. If, in the midst of this pandemic, governments can’t tell the difference, that’s in large part because officials (particularly federal) ignored early warnings, failed to develop COVID-19 testing, and barred private efforts to do so.13 Their failures and violations of rights are not grounds for further violations of rights.
Although, by a proper standard, Palm’s lockdown order still would have been struck down, such a recurrence to the fundamental political principle would have set a stalwart example for the rest of the country.
Fortunately, we still can learn from this and the many other mistakes in America’s response to COVID-19. Whereas the details of a given future pandemic may be unforeseeable (and constitute an emergency), the fact that eventually we will experience pandemics is not. They have happened, and they will happen again. The more proactive we are in forging the appropriate, rights-respecting laws and policies for dealing with them, the more we can be ruled by laws—not men.
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Acknowledgments: Although the opinions expressed in this piece are my own, I’d like to thank Timothy Sandefur for his helpful insights on this case and on the history of the non-delegation doctrine.
1. Alexander Hamilton, “Federalist No. 22,” The Federalist vs. Anti-Federalist Dispute: The Original Arguments for Each, Kindle edition (independently published, 2011), loc. 117.
2. Palm ordered “All individuals present within the State of Wisconsin” to “stay at home or at their place of residence” except to engage in “essential” and explicitly permitted activities. She ordered that all “Non-essential business and operations must cease . . . all activities at facilities located within Wisconsin,” excluding only “minimum basic operations,” such as processing payroll and facilitating remote work. Her order’s “Social Distancing Requirements” also mandated “Washing hands with soap and water for at least 20 seconds as frequently as possible,” “Regularly cleaning high-touch surfaces,” and “Covering coughs or sneezes”—and it proscribed shaking hands. It warned that “Violation or obstruction of this Order is punishable by up to 30 days imprisonment, or up to $250 fine, or both.” See Secretary-designee Andrea Palm, Governor Tony Evers, “Emergency Order 28: Safer at Home Order,” State of Wisconsin, Department of Health Services, April 16, 2020, https://evers.wi.gov/Documents/COVID19/EMO28-SaferAtHome.pdf; Wisconsin Legislature v. Secretary-Designee Andrea Palm, Supreme Court of Wisconsin, 36, https://www.wpr.org/sites/default/files/wi_legislature_v._andrea_palm_-_decision.pdf.
3. Of course, being free to risk one’s health does not mean that it is rational for all people in all circumstances to do so. Lovers of liberty can applaud the court’s decision to overturn Order 28 without endorsing those who use their restored freedom to take shortsighted risks. For more on this topic, see Jon Hersey, “Lockdowns Versus Living,” The Objective Standard 15, no. 2 (Summer 2020), https://www.theobjectivestandard.com/2020/04/lockdowns-versus-living/.
4. The state legislature, the body that originally granted DHS its powers, challenged Palm’s order, requesting that the Supreme Court decide whether that order was actually an “order” or, instead, a “rule.” Under Wisconsin law, a rule is essentially a law; once issued, it is applicable going forward. By contrast, an order remains in force only during a specific situation. DHS may issue orders unilaterally, but it must work with the legislature to make rules. Although Palm’s attorney and three of seven justices argued that Order 28 was just that, an order, four justices concurred that it was a rule. Thus, they concluded that when the secretary issued it unilaterally, she violated the law. However, Justice Brian Hagedorn cogently argued that Order 28 “is a temporary order issued to address the outbreak of a particular communicable disease” and so “does not meet the definition of a rule.” See Wisconsin Legislature v. Secretary-Designee Andrea Palm, 110–60.
5. Wisconsin Legislature v. Secretary-Designee Andrea Palm, 40.
6. Wisconsin Legislature v. Secretary-Designee Andrea Palm, 42.
7. Wisconsin Legislature v. Secretary-Designee Andrea Palm, 72–73.
8. See Woodrow Wilson, “What Is Progress,” in American Progressivism: A Reader, edited by Ronald J. Pestritto and William J. Atto (New York: Lexington Books, 2008), 50; also see Frank Johnson Goodnow, “The American Conception of Liberty,” in American Progressivism, 61–62.
9. For more on this topic, see Ronald Pestritto, “The Birth of the Administrative State: Where It Came from and What It Means for Limited Government,” The Heritage Foundation, November 20, 2007, https://www.heritage.org/political-process/report/the-birth-the-administrative-state-where-it-came-and-what-it-means-limited; also, for a list of administrative agencies, see “Agencies and Offices of the Administrative State,” Ballotopedia, https://ballotpedia.org/Agencies_and_offices_of_the_administrative_state (accessed May 19, 2020).
10. See Noble E. Cunningham, In Pursuit of Reason: The Life of Thomas Jefferson (Baton Rouge: Louisiana State University Press, 1987), 64–75.
11. Alexander Hamilton, “Federalist No. 28,” The Federalist vs. Anti-Federalist Dispute: The Original Arguments for Each, 116.
12. Subchapter II: Powers and Duties Related to Emergency Management of the Wisconsin Statutes says, “If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.” See Wisconsin Statues, 323.10, https://docs.legis.wisconsin.gov/statutes/statutes/323/II/10.
13. Eric Lipton et al., “He Could Have Seen What Was Coming: Behind Trump’s Failure on the Virus,” New York Times, April 11, 2020, https://www.nytimes.com/2020/04/11/us/politics/coronavirus-trump-response.html; Shawn Boberg et al., “Inside the Coronavirus Testing Failure: Alarm and Dismay among the Scientists Who Sought to Help,” Washington Post, April 3, 2020, https://www.washingtonpost.com/investigations/2020/04/03/coronavirus-cdc-test-kits-public-health-labs/; Bob Ortega et al., “How the Government Delayed Coronavirus Testing,” CNN, April 9, 2020, https://www.cnn.com/2020/04/09/politics/coronavirus-testing-cdc-fda-red-tape-invs/index.html.