[FRIAM] Wisconsin stay-at-home (safer at home) order overturned

[Eric Charles]

Steve,
Yeah, it will be interesting to see how this plays out. It is the type of
issue you would expect to vary from state to state: How much power do
various executive-branch members get during a state of emergency? Do the
laws that create that system provide oversight during the declared
emergency? Note, for example, that we are talking about powers that are
definitely *not* held by our President, as much as he likes to act like he
does.

Rule of Law vs. Doing The Right Thing is always a problem. In this case we
are dealing with laws that were exactly intended to limit what the
government could do to it's citizens. Those types of laws have oversized
cache in the American Mythos, when compared with the historic views of many
other countries. That cache remains strong, despite having been eroded over
the past century, and that erosion is at the core of much of our current
political/social strife.

The most deleterious effect of the rampant "gaming of the system" that you
allude to is the destruction of our ability to have honest, straightforward
conversations about how we would like the system to look. Perfectly
reasonable assertions can't be made, because those assertions have become
"dog whistles" or coded messages, likely to indicate certain hidden
agendas. :- (

-----------
Eric P. Charles, Ph.D.
Department of Justice - Personnel Psychologist
American University - Adjunct Instructor
<echarles at american.edu>


On Thu, May 14, 2020 at 1:26 PM Steven A Smith <sasmyth at swcp.com> wrote:

> 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> 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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