7 ms·

What we should do is one thing. Saying the government can make us do it is something else entirely.

by Grakel 6y ago

vmception 6y ago
Doesn't look like the Wisconsin Supreme Court really ruled on that, according to its purpose in Wisconsin, if you read the article. But it doesn't matter since overruling those kinds of courts is almost impossible, so yes if you wish for a court to overturn such an order that is what happened here!
arkades 6y ago
There's a couple centuries of common law precedent that the government can compel behavior for public health crises. The state supreme court here grossly violated legal precedent, and will have its ass overturned in a heartbeat if anyone has the time, resources, and will to escalate.
- bobthepanda 6y ago
  I was under the impression that the federal circuit only really looks at cases impacting federal law. Is there a place to escalate to?
  - zaroth 6y ago
    TFA says they are the court of last resort.
  - arkades 6y ago
    You are correct, there is not. I didn't attend to which circuit had issued the landmark-stupid ruling.
    - s1artibartfast 6y ago
      Why is the ruling stupid? It seems like an entirely reasonable check on the power of the governor. The health department and governor can order a binding shelter in place, but the elected state representatives have the power to overrule it. Shouldn't the majority be able to revoke such an order if they want?
      - arkades 6y ago
        Of course they can. Public health agencies' powers derive from founding statutes. A legislative body can always undertake an act of legislation to change the founding statute and, in so doing, change the powers of the public health agency as they see fit. They didn't do that here. They wanted a direct check on the agency's decision, rather than executing the power they actually had. To quote my other response, on why this was a stupid ruling: >Which is literally the court's excuse for the "rulemaking" ruling - that they should have gone through the 12mo+ tradition of regulation-development that legislatively-empowered agencies utilize. Which isn't how public health powers usually work - the public health powers are delineated in empowering statutes and regulations ahead of time, and allow leewey to do things like "order quarantine" within broadly-worded statutes+regs. > Which is why this was phenomenally stupid. Besides ignoring context, this was a ruling that basically boiled down to "agencies cannot exercise the powers developed in the scope of their founding statutes and regulations unless those (edit: specific manifestations) have been very explicitly laid out ahead of time, otherwise, they need to go to rulemaking for every application of their powers." It effectively guts the ability of agencies to do things they are supposed to do, have been doing, and prevents them from acting in time-frames <12months. All in the context of a legislative body that had a legal remedy afforded to them, but that would have been too slow. So for political purposes, they've now gutted the ability of emergency agencies to respond to emergencies, so that legislatures don't have to legislate changes to legislation.
- TylerE 6y ago
  I'd like to think that, but after the GOP's outrageous actions to stack the Supreme Court I can't be sure the outcome would be any different.
- dragonwriter 6y ago
  > There's a couple centuries of common law precedent that the government can compel behavior for public health crises. The issue that was cobtrolling here was compliance with proper administative procedure, not the authority of state government to compel behavior. So precedent on the latter is immaterial. > The state supreme court here grossly violated legal precedent, and will have its ass overturned in a heartbeat if anyone has the time, resources, and will to escalate. It's a state law claim that has been adjudicated by the highest state court, there is no place for the case to be escalated to.
- shepherds 6y ago
  How did they "grossly violate legal precedent?" Nobody challenged the governor's order, they challenged the authority of the health services secretary to extend the order. Conservative judicial interpretation of the constitution is that power not explicitly granted by congress is not lawful. Even though I'm not a conservative, I'm glad that opinion won.
- pdonis 6y ago
  *> government can compel behavior for public health crises You do recognize the difference between "government, acting according to established procedures with proper involvement by all branches of government" and "one single person, acting on emergency authority that was never intended to last this long", right?
  - djsumdog 6y ago
    Plagues gave way to public health, and some would argue, modern plagues formed the State as we know it today. Of course back then ministries of health burned people alive in their houses, but today, they give us clean water and safe food: https://www.youtube.com/watch?v=2Rr9b-HMSS4 https://www.youtube.com/watch?v=2Rr9b-HMSS4
    - pdonis 6y ago
      The ministry of health doesn't give me clean water and safe food. At best, it makes and (to some extent) checks for compliance with regulations about those things. But it doesn't produce them. At least, not in any country that actually has sufficient quantities of either.
- cryptonector 6y ago
  Yes, but there's much less support for Executives acting alone. We have a republican form of government where only the legislative branch can pass criminal statutes. In this case the Wisconsin Legislature sued to preserve its powers and prerogatives, as well it should. That does not mean that it won't be amenable to passing supporting statutes.
  - mullingitover 6y ago
    > Yes, but there's much less support for Executives acting alone. The whole point of having an executive is for a single person to act alone and decisively, especially in times of crisis. In the midst of an emergency is not the time for legislative subcommittees to endlessly debate.
    - WillPostForFood 6y ago
      The process in Wisconsin isn't endless debate - just submit the rile to the legislative committee, and they have the power to negate it. It is affirmed by default.
    - cryptonector 6y ago
      Actually, no. That would be a dictator. In American constitutional law the Executive has rather limited powers.
      - mullingitover 6y ago
        > the Executive has rather limited powers The US president has the power to unilaterally order a nuclear strike on any point on the planet at any time they choose, regardless of how anyone in the other branches feel about it at the time. So 'limited,' maybe, but also able to end life on Earth as we know it on a whim. That's an aside, however. I'm talking about the general concept of an executive office, not specifically the US president. And sure, there can be limits, but the whole point of an executive is to avoid endless deliberation in the appropriate situations. Perfect example: Congress had the constitutional power to manage tariffs, and they surrendered that power to the president willingly because they weren't able to be decisive enough with it.
organsnyder 6y ago
When our actions can harm others, the government absolutely has the right—and the obligation—to step in.
- denkmoon 6y ago
  Not at the expense of individual liberty. This principle is well established in the USA at least, given the continuing presence of 2A.
  - deleted 6y ago
    [deleted]
  - Frondo 6y ago
    Yes, at the expense of individual liberty. Traffic laws are an obvious and rights-restraining example of this. I may or may not cause harm by running a red light in the middle of the night, or speeding on a freeway -- in fact, I know a guy who habitually runs reds at night, "just because" -- yet the constitutionality of ticketing people for running reds or speeding is not, as far as I know, in dispute. How this maps onto public health in a pandemic, I don't know.
- daenz 6y ago
  >can harm others Can you be more specific? It's the nebulousness of what "can harm" that rubs a lot of people the wrong way. Taken to one extreme, there's almost nothing you can do that doesn't potentially harm others. For example, I could leave my stove burner on and burn down the entire apartment building. So many things come with risks to others, and those things are just part of existing in society.
  - TylerE 6y ago
    Does the Bill of Rights give the police the right to arrest you for driving drunk?
    - daenz 6y ago
jb775 6y ago
Exactly! So many people are missing that simple point and ok with giving up civil liberties the USA was founded on.
mikekchar 6y ago
They can make you pay your taxes, but can't restrict your movements in a disease outbreak. I live in Japan, and the government here also does not have the power to legally lock us down (which is why there are only recommendations here -- luckily most people seem to be following them). It strikes me odd, though. There are so many things that the government can legally make you do, many of which seem much less important to me than this. I'm sure there are many people who disagree, but having a conversation over whether or not the government should have this power is not unreasonable IMHO.
- zebrafish 6y ago
  It’s more about having your representative government voice the voters concern than anything. Not that this is important or that the government doesn’t have the power to implement this. It’s just the branch of government which has the power to implement is in question.
  - Grakel 6y ago
    Yes, the legislature would have to pass a law. But in the US this would be unconstitutional due to the right to assemble. A good government is a secretary / janitor, not A CEO.
    - zebrafish 6y ago
      Seems like there is a consensus in this thread that shelter in place is legal, though stay at home may not be.
- djsumdog 6y ago
  Like they could suspend rent, mortgages, interest of any kind. In the UK, people get 80% of their pre-layoff wages. In the United States, the Payroll Protection Program ran out in days! If America is going to close the State, it also has to freeze the economy and give people ideas, goals and hope. The American government, at all levels Federal and State, and failed at doing this to a tragic degree. I wrote more about this: https://battlepenguin.com/politics/this-is-not-a-time-of-honor#politicians https://battlepenguin.com/politics/this-is-not-a-time-of-hon...
deleted 6y ago
[deleted]
Shivetya 6y ago
A government cannot violate its own rules by declaring an event unprecedented and that is what many officials have been doing. I am all for lawful precautions but you have to give the people some credit. The lock downs and restrictions are incredibly arbitrary and in many cases nonsensical. you can have similar businesses and one is non essential or one has rules applied that don't apply to the other. this is what frustrates people the most, the vast majority know what to do. those who don't have always been there and always been a problem but it was easy to ignore them prior

What we should do is one thing. Saying the government can make us do it is something else entirely.

by Grakel 6y ago

What we should do is one thing. Saying the government can make us do it is something else entirely.

Doesn't look like the Wisconsin Supreme Court really ruled on that, according to its purpose in Wisconsin, if you read the article. But it doesn't matter since overruling those kinds of courts is almost impossible, so yes if you wish for a court to overturn such an order that is what happened here!

arkades 6y ago

There's a couple centuries of common law precedent that the government can compel behavior for public health crises. The state supreme court here grossly violated legal precedent, and will have its ass overturned in a heartbeat if anyone has the time, resources, and will to escalate.

bobthepanda 6y ago
I was under the impression that the federal circuit only really looks at cases impacting federal law. Is there a place to escalate to?
- zaroth 6y ago
  TFA says they are the court of last resort.
- arkades 6y ago
  You are correct, there is not. I didn't attend to which circuit had issued the landmark-stupid ruling.
  - s1artibartfast 6y ago
    Why is the ruling stupid? It seems like an entirely reasonable check on the power of the governor. The health department and governor can order a binding shelter in place, but the elected state representatives have the power to overrule it. Shouldn't the majority be able to revoke such an order if they want?
    - arkades 6y ago
      Of course they can. Public health agencies' powers derive from founding statutes. A legislative body can always undertake an act of legislation to change the founding statute and, in so doing, change the powers of the public health agency as they see fit. They didn't do that here. They wanted a direct check on the agency's decision, rather than executing the power they actually had. To quote my other response, on why this was a stupid ruling: >Which is literally the court's excuse for the "rulemaking" ruling - that they should have gone through the 12mo+ tradition of regulation-development that legislatively-empowered agencies utilize. Which isn't how public health powers usually work - the public health powers are delineated in empowering statutes and regulations ahead of time, and allow leewey to do things like "order quarantine" within broadly-worded statutes+regs. > Which is why this was phenomenally stupid. Besides ignoring context, this was a ruling that basically boiled down to "agencies cannot exercise the powers developed in the scope of their founding statutes and regulations unless those (edit: specific manifestations) have been very explicitly laid out ahead of time, otherwise, they need to go to rulemaking for every application of their powers." It effectively guts the ability of agencies to do things they are supposed to do, have been doing, and prevents them from acting in time-frames <12months. All in the context of a legislative body that had a legal remedy afforded to them, but that would have been too slow. So for political purposes, they've now gutted the ability of emergency agencies to respond to emergencies, so that legislatures don't have to legislate changes to legislation.
TylerE 6y ago
I'd like to think that, but after the GOP's outrageous actions to stack the Supreme Court I can't be sure the outcome would be any different.
dragonwriter 6y ago
> There's a couple centuries of common law precedent that the government can compel behavior for public health crises. The issue that was cobtrolling here was compliance with proper administative procedure, not the authority of state government to compel behavior. So precedent on the latter is immaterial. > The state supreme court here grossly violated legal precedent, and will have its ass overturned in a heartbeat if anyone has the time, resources, and will to escalate. It's a state law claim that has been adjudicated by the highest state court, there is no place for the case to be escalated to.
shepherds 6y ago
How did they "grossly violate legal precedent?" Nobody challenged the governor's order, they challenged the authority of the health services secretary to extend the order. Conservative judicial interpretation of the constitution is that power not explicitly granted by congress is not lawful. Even though I'm not a conservative, I'm glad that opinion won.
pdonis 6y ago
*> government can compel behavior for public health crises You do recognize the difference between "government, acting according to established procedures with proper involvement by all branches of government" and "one single person, acting on emergency authority that was never intended to last this long", right?
- djsumdog 6y ago
  Plagues gave way to public health, and some would argue, modern plagues formed the State as we know it today. Of course back then ministries of health burned people alive in their houses, but today, they give us clean water and safe food: https://www.youtube.com/watch?v=2Rr9b-HMSS4 https://www.youtube.com/watch?v=2Rr9b-HMSS4
  - pdonis 6y ago
    The ministry of health doesn't give me clean water and safe food. At best, it makes and (to some extent) checks for compliance with regulations about those things. But it doesn't produce them. At least, not in any country that actually has sufficient quantities of either.
cryptonector 6y ago
Yes, but there's much less support for Executives acting alone. We have a republican form of government where only the legislative branch can pass criminal statutes. In this case the Wisconsin Legislature sued to preserve its powers and prerogatives, as well it should. That does not mean that it won't be amenable to passing supporting statutes.
- mullingitover 6y ago
  > Yes, but there's much less support for Executives acting alone. The whole point of having an executive is for a single person to act alone and decisively, especially in times of crisis. In the midst of an emergency is not the time for legislative subcommittees to endlessly debate.
  - WillPostForFood 6y ago
    The process in Wisconsin isn't endless debate - just submit the rile to the legislative committee, and they have the power to negate it. It is affirmed by default.
  - cryptonector 6y ago
    Actually, no. That would be a dictator. In American constitutional law the Executive has rather limited powers.
    - mullingitover 6y ago
      > the Executive has rather limited powers The US president has the power to unilaterally order a nuclear strike on any point on the planet at any time they choose, regardless of how anyone in the other branches feel about it at the time. So 'limited,' maybe, but also able to end life on Earth as we know it on a whim. That's an aside, however. I'm talking about the general concept of an executive office, not specifically the US president. And sure, there can be limits, but the whole point of an executive is to avoid endless deliberation in the appropriate situations. Perfect example: Congress had the constitutional power to manage tariffs, and they surrendered that power to the president willingly because they weren't able to be decisive enough with it.

organsnyder 6y ago

When our actions can harm others, the government absolutely has the right—and the obligation—to step in.

denkmoon 6y ago
Not at the expense of individual liberty. This principle is well established in the USA at least, given the continuing presence of 2A.
- deleted 6y ago
  [deleted]
- Frondo 6y ago
  Yes, at the expense of individual liberty. Traffic laws are an obvious and rights-restraining example of this. I may or may not cause harm by running a red light in the middle of the night, or speeding on a freeway -- in fact, I know a guy who habitually runs reds at night, "just because" -- yet the constitutionality of ticketing people for running reds or speeding is not, as far as I know, in dispute. How this maps onto public health in a pandemic, I don't know.
daenz 6y ago
>can harm others Can you be more specific? It's the nebulousness of what "can harm" that rubs a lot of people the wrong way. Taken to one extreme, there's almost nothing you can do that doesn't potentially harm others. For example, I could leave my stove burner on and burn down the entire apartment building. So many things come with risks to others, and those things are just part of existing in society.
- TylerE 6y ago
  Does the Bill of Rights give the police the right to arrest you for driving drunk?
  - daenz 6y ago

jb775 6y ago

Exactly! So many people are missing that simple point and ok with giving up civil liberties the USA was founded on.

mikekchar 6y ago

They can make you pay your taxes, but can't restrict your movements in a disease outbreak. I live in Japan, and the government here also does not have the power to legally lock us down (which is why there are only recommendations here -- luckily most people seem to be following them). It strikes me odd, though. There are so many things that the government can legally make you do, many of which seem much less important to me than this. I'm sure there are many people who disagree, but having a conversation over whether or not the government should have this power is not unreasonable IMHO.

zebrafish 6y ago
It’s more about having your representative government voice the voters concern than anything. Not that this is important or that the government doesn’t have the power to implement this. It’s just the branch of government which has the power to implement is in question.
- Grakel 6y ago
  Yes, the legislature would have to pass a law. But in the US this would be unconstitutional due to the right to assemble. A good government is a secretary / janitor, not A CEO.
  - zebrafish 6y ago
    Seems like there is a consensus in this thread that shelter in place is legal, though stay at home may not be.
djsumdog 6y ago
Like they could suspend rent, mortgages, interest of any kind. In the UK, people get 80% of their pre-layoff wages. In the United States, the Payroll Protection Program ran out in days! If America is going to close the State, it also has to freeze the economy and give people ideas, goals and hope. The American government, at all levels Federal and State, and failed at doing this to a tragic degree. I wrote more about this: https://battlepenguin.com/politics/this-is-not-a-time-of-honor#politicians https://battlepenguin.com/politics/this-is-not-a-time-of-hon...

deleted 6y ago

[deleted]

Shivetya 6y ago

A government cannot violate its own rules by declaring an event unprecedented and that is what many officials have been doing. I am all for lawful precautions but you have to give the people some credit. The lock downs and restrictions are incredibly arbitrary and in many cases nonsensical. you can have similar businesses and one is non essential or one has rules applied that don't apply to the other. this is what frustrates people the most, the vast majority know what to do. those who don't have always been there and always been a problem but it was easy to ignore them prior