[FRIAM] Wisconsin stay-at-home (safer at home) order overturned
Steven A Smith
sasmyth at swcp.com
Thu May 14 13:25:50 EDT 2020
Eric -
Thanks for the more penetrative review of the situation. I was, in
fact, working from new-reports and anecdotes from family... I suppose
that means that the dominoes across the country set to fall might not
fall as crisply (or at all?).... I'm still torn (hypothetically) about
the distinction between "doing the right thing" and "the rule of law".
I believe that the distinction is both about "context" (one size fits
all in space and time and circumstance) and time-scale... if a rule set
in cement (legislation) becomes in-apt for a new circumstance (pandemic
threat), it may take longer to adjust it to fit than the time-scale of
the event (weeks?) as it unfolds. I suppose this is what executive
emergency powers exist for... to allow for timely tactical response
while the strategic longer-term/broader-implication responses can muster
as appropriate.
Too bad we seem to have (at least?) one significant faction in our
politics interested in pitting those against one another when I *think*
they were designed to work cooperatively in the best of times and
provide checks and balances in the worst of times. My biases have me
wanting to believe that this "pitting" is entirely the contrivance of
the GOP/Right but of course I hear just the opposite *from* them and am
left wondering how much of an imbalance there is... anecdotally,
"packing the courts" and "voter suppression" and "gerrymandering" are
(almost) exclusively the province of the (authoritarian,
loyalty-before-sensemaking?) Right. The counter argument from the
other side seems to reduce to "voter fraud" and maybe citing an
(unbalanced?) number of court-packings, and gerry-manderings.
Too much (IMO) of politics today seems to be no more than "gaming the
system" by "mucking with the machinery" rather than truly trying to
satisfice or optimise the design and operation of the machinery to
achieve collectively beneficial results.
mumble,
- Steve
On 5/14/20 10:13 AM, Eric Charles wrote:
> The news coverage of this has been odd. The order is definitely /not/
> countering a "governor's stay-at-home order", which is what I see most
> people saying. The governor took emergency powers, made a few orders
> directly, and then instructed the Health Secretary to take the lead on
> state-wide response. The Health Secretary then issued several orders
> under her own signatory authority, only one of which was challenged
> (Order 28). The ruling is that _/that particular order/_ was so broad
> and general as to count as executive branch rule making, which has its
> own set of rules, including a period of time for review by the
> legislature.
>
> Full decision:
> https://evers.wi.gov/Documents/COVID19/EMO28-SaferAtHome.pdf
>
> From the opinion of the court, paragraph 1:
>
> This case is about the assertion of power by one unelected
> official, Andrea Palm, and her order to all people within
> Wisconsin to remain in their homes, not to travel and to close all
> businesses that she declares are not "essential" in Emergency
> Order 28. Palm says that failure to obey Order 28 subjects the
> transgressor to imprisonment for 30 days, a $250 fine or both.
> This case is not about Governor Tony Evers' Emergency Order or the
> powers of the Governor.
>
>
> From paragraph 7:
>
> On April 16, 2020, Palm issued Emergency Order 28, also titled
> "Safer at Home Order." This order was not issued by the Governor,
> nor did it rely on the Governor's emergency declaration. Rather,
> it relied solely on "the authority vested in [Andrea Palm,
> Department of Health Services Secretary-designee] by the Laws of
> the State, including but not limited to [Wis. Stat. §] 252.02(3),
> (4), and (6)." Emergency Order 28 commands all individuals in
> Wisconsin "to stay at home or at their place of residence" with
> certain limited exceptions approved by Palm or risk punishment "by
> up to 30 days imprisonment, or up to $250 fine, or both." 8 Order
> 28 also:
>
> * Prohibits "[a]ll forms of travel" except what Palm deems
> essential.
>
> * Orders "[a]ll for-profit and non-profit businesses" to
> "cease all activities" except for minimum operations that Palm
> deemed basic.
>
> * Prohibits "[a]ll public and private gatherings of any
> number" "not part of a single household."
>
> * Declares that all public and private K-12 schools "shall
> remain closed" for the remainder of the year.
>
> * Declares that libraries shall remain closed for "all
> inperson services."
>
> * Declares all "public amusement and activity" places closed
> regardless of whether "indoors or outdoors" except golf
> courses (with restrictions). The order says "Driving ranges
> and miniature golf must remain closed."
>
> * Continues the ordered closure of all salons and spas.
>
> * Continues the closure of every restaurant and bar except for
> take-out or delivery service.
>
> * Orders religious groups to limit gatherings to "fewer than
> 10 people in a room" including weddings and funerals.
>
> * Imposes a six-foot social distancing requirement for any
> person not "residing in a single living unit or household."
>
>
>
>
>
>
> On Thu, May 14, 2020 at 10:55 AM Steven A Smith <sasmyth at swcp.com
> <mailto:sasmyth at swcp.com>> wrote:
>
> Friammers -
>
> Mary's daughter, who lives in Wisconsin alerted us to the big
> court-decision overturning the governor's stay-at-home order:
>
> https://madison.com/wsj/news/local/govt-and-politics/wisconsin-supreme-court-strikes-down-stay-at-home-order/article_fd2be344-666f-5437-8955-f5cd9ae17a50.html
>
> /In a concurring opinion, Kelly said the court’s decision
> hinged on determining the extent of Palm’s authority, not
> whether her emergency order was a good idea./
>
> /“The order may be a brilliantly conceived and executed
> response to COVID-19,” Kelly said. “Either way, that is not
> the question before the court.”/
>
> I'm (nicely?) split on issues like this and I think this last
> quote really says a lot. I understand that 2 or more counties
> immediately issued their own "safer at home" order matching the
> one repealed at the state level. I'm not clear on whether a
> similar "overreach of authority" will ultimately be decided
> against those.
>
> Anecdotally, in the meantime, many bars have opened and apparently
> many patrons have returned (without masks and not observing social
> distancing guidelines).
>
> This seems like a good test bed of some of the assumptions behind
> Dave's "prophecy". Will the (if we believe in the germ theory
> and network transmission) uptick in cases resulting from this lead
> to a continuation of the pandemic (or "pandemic" if we prefer to
> believe the only uncontrolled growth is in hysterical media
> coverage and hypochondria). The best case (and one I mostly hope
> for) might be if the subset of the WI population who now disregard
> the (former) rules is small enough and insular (only infecting one
> another) enough and/or the herd immunity has grown enough (highest
> estimates in places like NYC I think are still down as low as 20%
> out of the believed 70% required to bring R0 below 1.0 w/o
> masks/social-distance measures?).
>
> Given that the courts may well be accurate in their interpretation
> of the limits to the governor's powers, I would expect a domino of
> challenges across republican-majority courts in other states, and
> a subsequent surge in the unrestricted opening of businesses and
> events.
>
> I find a bit of cognitive/emotional/spiritual dissonance in trying
> to hold all three of the following in my head/heart/soul at the
> same time:
>
> 1. The rule of law is important in our society and if a governor
> does not have the right to shut down as hard as some have,
> then that needs to be acknowledged and reversed.
> 2. There is a lot of evidence suggesting that like Kelly above is
> quoted that "the order may be a brilliantly conceived and
> executed response... " and that reversing it in fact as well
> as in law may well yield a significant increase in R0 in those
> states (and among states who have significant mixing *with*
> those states), possibly putting us back close to where we were
> in late March.
> 3. I don't like the idea of telling others what to do
> (wholesale), nor being told what to do (specifically), but I
> also recognize that we do not live isolated, solitary lives,
> and "what we do matters". My threshold on accepting secondary
> and tertiary consequences may be above "helmet and seatbelt
> laws" but below "measures to suppress epidemic spread of
> deadly disease". But how does that jive with my threshold
> for accepting "limits to personal agency and volition"?
>
> These are indeed, interesting times, and as with the basis of
> Dave's prophecy, "only time will tell"... and with Glen's "put a
> pin in it", I just hope we keep track and pay attention to how
> well our prophecies/projections/forecasts play out.
>
> - Steve
>
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