A Pandemic Does Not Suspend the Rule of Law
The recent court decisions overturning COVID-19 lockdowns in Wisconsin and Oregon focused on abstruse issues of statutory interpretation. But both cases also addressed a more fundamental question: Is the rule of law suspended during a public health emergency?
In response to the COVID-19 pandemic, state officials have imposed unprecedented restrictions on our liberties and livelihoods, acting on the assumption that they can do whatever they think is necessary to protect the public from a potentially deadly disease. The courts, which were initially reluctant to second-guess state responses to COVID-19, are beginning to recognize that public health powers, while broad, are not a blank check.
The Wisconsin case involved a dispute between two branches of the state government. The Republican leaders of the state legislature argued that Andrea Palm, a Democrat who runs the Wisconsin Department of Health Services, was exercising powers she had never been granted when she ordered the closure of “nonessential” businesses and confined residents to their homes except for purposes she approved, threatening violators with fines and jail.
This case was not simply a partisan spat. It raised the question of whether a single executive branch official can unilaterally criminalize heretofore legal behavior, based on nothing more than her own judgment of what is required to protect public health.
The Wisconsin Suprem
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