Governors can not ignore state constitutions to impose COVID-19 restrictions

ANALYSIS/OPINION:

Last week, when the Wisconsin Supreme Court found an extension of Gov. Tony Evers’ lockdown unconstitutional, the governor blamed a “partisan” conspiracy between Republican legislators and the court that would throw the state into “chaos” and lead to suffering and death.

In his rant, Mr. Evers glossed over both the fact that one of the court’s conservative members disagreed with the decision and that the court majority decision was based not on whether the lockdown was a good idea, but whether it was legal and constitutional.

Lawsuits pending in other states challenge the authority of governors to ignore their states laws and constitutions to impose unprecedented restrictions on the traditional rights of their state’s citizens as part of their approach to defeating the coronavirus, but the Wisconsin court was the first to declare a lockdown illegal. 

After narrowly defeating Wisconsin Gov. Scott Walker three years ago, Democrat Tony Evers moved into the Governor’s Mansion and began fighting to implement an ideologically progressive agenda that included more gun control, expanded abortion rights and a rollback of many of the achievements that had made Mr. Walker one of the most consequential governors in the nation.

The governing team Mr. Evers put together included progressive activists from around the country. One was Andrea Palm, a New Yorker and former Hillary Clinton Senate staffer who made the switch to the Obama White House, then senior counselor to Mr. Obama’s secretary of Health and Human Services. Ms. Palm was a key Obamacare promoter. Mr. Evers brought her to Madison as his secretary of Wisconsin’s Department of Health Services to expand the state’s health care programs. 

The state legislature, however, remained in Republican hands and Ms. Palm’s early decision to hire Nicole Safar, a 14-year veteran lobbyist for Planned Parenthood, as her chief of staff led to a fight with the legislature which has thus far refused to confirm Ms. Palm and left her as “acting” secretary. It was to her that Mr. Evers turned when he realized he didn’t have the authority to extend the lockdown he had earlier ordered because of legislatively-imposed limits on his “emergency” powers.

To get around the restriction on his doing so, he had Ms. Palm do it for him. 

She not only extended the order, but on her own made it a criminal offense to violate it. “Emergency Order 28” extended one of the harshest lockdown orders in the country through May 25, banning, among other things, all non-essential travel and business, all gatherings involving people not of a single household, and limiting attendance at a church service, funeral or wedding to 10 people. 

The court found that by tacking on criminal penalties including fines and jail time for anyone who violated the order she had over-stepped her authority and, as two of the justices wrote in a concurring opinion, “the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance.” “In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether.”

Mr. Evers, like others that come to mind, decided at some point that the current pandemic gave him the authority to act as a dictator for the duration for the common good as he sees it. The Wisconsin decision hinged not on whether the restrictions would help or hurt defeat the coronavirus, but on the more basic question of whether such restrictions can be imposed by fiat without reference to statutory and constitutional limits on a governor’s executive authority. 

This point was reiterated recently in a Texas case by State Supreme Court Justice Jimmy Blaylock, who wrote, “All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic.”

Those favoring keeping and even extending the shutdown no doubt believe they are doing the right thing regardless of evidence suggesting that the governors of states like Arkansas, Florida and Georgia, which have either refused to lockdown their states or begun reopening them, have been as successful in limiting the spread of the coronavirus as governors like Mr. Evers. They see the legal restrictions they face as outrageous and seek any way they can to get around them. 

Wisconsin’s Gov. Evers has discovered that like it or not, he will have to follow the law. Other governors will in all likelihood be learning the same thing in the weeks ahead as their courts confirm that we still live in a nation of laws.

• David A. Keene is an editor at large for The Washington Times.