Legal challenges to stay-at-home orders gain momentum

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Opponents of stay-at-home orders got a major boost this week when the Wisconsin Supreme Court invalidated the state’s coronavirus health order, a decision that’s already generating momentum behind similar challenges across the country.

Wednesday’s decision by the justices in Madison lifted statewide restrictions and produced a mixed reaction among Wisconsinites. Within hours, elated patrons rushed to newly reopened bars and restaurants, while the Democratic governor warned the number of preventable infections and deaths from COVID-19 would rise as a result of the court’s 4-3 decision.

“We’re the Wild West,” Gov. Tony Evers told MSNBC just hours after the ruling was handed down. “We’re just leaving it open. We’re going to have more cases, we’re going to have more deaths. It’s a sad occasion for the state. I can’t tell you how disappointed I am.”

Opponents of stay-at-home orders, however, are anything but disappointed.

“I imagine the individuals and organizations behind legal challenges in other states are taking heart from the Wisconsin legislature’s legal victory,” said Lindsay Wiley, a law professor at American University.

Across the country, more than a dozen lawsuits have been filed that take aim at the constitutionality of coronavirus-related state laws, according to an analysis by the law firm Hunton Andrews Kurth.

Additionally, more than 40 legal challenges have been mounted against orders involving forced business closures and government decisions on which businesses are deemed essential and thus exempt from health restrictions.

The Wisconsin ruling may embolden protesters outside the state and add to the flurry of litigation, experts say.

“It’s entirely possible that the court’s ruling could generate political momentum in other states,” said Scott Idleman, a law professor at Marquette University. “Just as, I believe, earlier religious freedom challenges in other states such as Kansas and Kentucky likely encouraged subsequent lawsuits.”

The case reached Wisconsin’s top court after the state’s GOP-led legislature filed suit against State Health Secretary Andrea Palm. The Republican lawmakers argued that Palm’s directive requiring Wisconsinites to stay at home, forcing business to close and banning travel with only limited exceptions, was illegal.

The court ruled that Palm had failed to follow proper rulemaking procedure and exceeded her authority with the statewide health order.

Within hours of the decision, the Wisconsin Tavern League urged people to go to bars and restaurants — and many heeded the call.

But the outcome also inspired sharp criticism at the state and national level. Sen Tammy Baldwin (D-Wis.) decried the decision.

“The people of Wisconsin have done their part to advance our common good during this pandemic and now the WI Supreme Court has done the bidding of

@SenFitzgerald & @repvos once again to put politics ahead of public health,” she tweeted. “It’s shameful they can’t put your health and safety first.”

Former Attorney General Eric Holder, who served during the Obama administration, said the court’s ruling was motivated by politics and ideology, and had “callously puts lives at risk.”

President Trump hailed the opinion, and the defeat for Evers.

“The Great State of Wisconsin, home to Tom Tiffany’s big Congressional Victory on Tuesday, was just given another win,” Trump tweeted. “Its Democrat Governor was forced by the courts to let the State Open. The people want to get on with their lives. The place is bustling!”

Some conservative commentators, Laura Ingraham and Brian Kilmeade of Fox News, expressed hope that the ruling would inspire challengers in other states.

“The Supreme Court stood up and said, ‘You’re being unreasonable, governor,’” Kilmeade said Thursday on “Fox & Friends.”

“So I think that court is going to inspire a lot of people today,” he added.

The ruling may deliver a political shot in the arm to the “reopen” movement gathering steam in other parts of the country.

Gauging its impact on other state courts, however, may depend on how similar their health orders are to Wisconsin’s, experts said.

Richard Pildes, a law professor at New York University, said American courts have generally given deference to the government officials amid public health crises.

When courts have intervened, he said, the trend has not been to aggressively defend civil liberties at the expense of public health orders. Rather, courts are more likely to require that members of the executive secure the backing of their state legislature — which is what Wisconsin’s Supreme Court said in its ruling that state officials should do.

“I’m not saying the Wisconsin court was correct,” Pildes said. “But if other courts push back against actions of governors or state agencies, this separation-of-powers path is the one history suggests they are most likely to take.”

In Wisconsin’s case, the legislature had acted a decade ago to narrow the power of state agencies. A 2011 statute removed agencies’ so-called “implied authority,” allowing them only to act under powers explicitly granted by law.

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In states where agencies have implied power, courts are more likely to uphold their public health orders, Idleman said.

However, governors may see their powers erode due to another factor: the duration of the pandemic.

“The longer the crisis wears on, the less compelling it is for the governor to characterize it as an emergency in which there’s no time for the legislature to weigh in,” said Wiley, of American University. “Some courts may be sympathetic to the idea that the time has come for more democratic deliberation on an appropriate response to the pandemic than emergency executive orders entail.”