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“If a forest fire breaks out, there is no time for debate. Action is needed. The governor could declare an emergency and respond accordingly. But in the case of

“If a forest fire breaks out, there is no time for debate. Action is needed. The governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely,” Roggensack wrote for the majority. Refreshing to see some pressure for democracy to resume.

Narkov 6y ago
Democracy to resume?? By striking down a democratically elected officials order?
- cryptonector 6y ago
  Yes. Courts do that a lot in case you've not noticed (EDIT: Though not in this case! From the opinion: "This case is about the assertion of power by one unelected official, Andrea Palm, ..."[0].) But in this case the issue is that a governor cannot impose law without the legislature. Wisconsin's legislature still sits -- if not in session, perhaps the governor could call it into session -- and can pass legislation. [0] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...
- lainga 6y ago
  This line of thinking is very close to Bonapartism as interpreted by Napoleon III. I am the democratically elected emperor; my mandate comes from the people having elected me; I may do whatever I deem in the interest of the people who have elected me.
- Digory 6y ago
  Democratically elected to enforce the laws, not make them, except in truly limited circumstances.
- fennecfoxen 6y ago
  Yes, in a dispute filed by the democratically elected members of the legislature? With the end result being that a democratically elected legislature with more than one person will have the opportunity to talk about the tradeoffs involved, make the case for constituents, and decide things like whether the response must be uniform between the dense cities and the rural countryside. This is a strict increase in democracy.
- xamuel 6y ago
  The order they struck down was an order issued by a non-elected bureaucrat.
  - Narkov 6y ago
    Which is, of course, under the delegated authority of the governor.
cryptonector 6y ago
The legislatures have not been wiped out by covid-19. Elections are still being held too. If the legislatures wish to pass laws requiring various establishments to close down, they can pass them, and if Governors wish to have such laws on the books, they can request them of their respective legislatures. Similarly for the Federal government: Congress is still sitting, and they call their own sessions -- it can pass whatever laws are needed, and even override the President's vetoes if he does. In the U.S. it's well-accepted, long-established constitutional law that presidential executive orders simply do not and cannot have the force of statutory law without connection to an enabling statutes. The Republican Guarantee clause of the Constitution means that the States have to have separate legislative and executive branches of government, and by extension that gubernatorial EOs also can't have the force of statutory law without the support of statutes -- otherwise Governors could rule without legislatures, as kings, which would be decidedly not a republican form of government.
- nelaboras 6y ago
  But is it really democracy in action if a small-r Republicans holds the governor hostage?
  - HideousKojima 6y ago
    Yes, obstructionism is just as much a part of democracy as passing legislation, there's no part of democracy that says legislatures have to pass anything presented to them
  - vorpalhex 6y ago
    Are they really holding him hostage by taking him to task for an illegal order?
  - cryptonector 6y ago
    What are you talking about. The constitutional system we have is that legislatures are Sovereigns and Executives are Heads of State. I don't care if the Wisconsin legislature is led by one party or another -- it has powers and prerogatives that it has to be jealous of. The governor is not being held hostage, rather, the legislature has to be consulted and may not be ignored.
vkou 6y ago
So, an undemocratically appointed partisan official nullifies legislature passed by democratically elected officials, and that is called a victory for democracy?
- JumpCrisscross 6y ago
  > an undemocratically appointed partisan official nullifies legislature passed by democratically elected officials To my knowledge, there was no such legislation. The order was issued by the executive.
  - vkou 6y ago
    The legislature passed a bill that granted this power to the executive in past decades. Partisan judges felt the need to overturn that bill - despite the legislature retaining the power to override the executive, and to repeal that bill - if they could get 66% of the assembly behind it. This is the opposite of a democratic process. The democratic process has checks and balances for dealing with a rogue executive - but it requires an overwhelming support of the legislature. Instead, this ended up being decided by unelected career bureaucrats.
    - JumpCrisscross 6y ago
      > legislature passed a bill that granted this power to the executive The legislature granted specific emergency powers to the governor. Based on the decision, I don’t see the scope of those powers being met. (Specifically, the criminal consequences and open-ended timeline.) And it’s the legislature, today, bringing the case against the executive. > democratic process has checks and balances for dealing with a rogue executive - but it requires an overwhelming support of the legislature This is true in no system with the rule of law. The judiciary also checks the executive. [1] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...
    - flyingfences 6y ago
      > The legislature passed a bill that granted this power to the executive in past decades. No, the explicit holding in this case is that the executive has not been granted this power by the legislature.
dilandau 6y ago
I'm hopeful that more states will follow this lead. At the outset the shutdowns have undoubtedly helped prevent a massive tide of sickness that would have overwhelmed the healthcare system. Let's not forget that this was always the point of the shutdowns. It was never about preventing people from getting sick at some point -- it was about limiting a crush of sick people all at once. As Powell said yesterday, 40% of households making $40K or less lost their jobs in March. This is crushing those most vulnerable, economically.
- anoraca 6y ago
  Wouldn't they be bringing in more income from the $600/week in Federal unemployment + state unemployment than they would at their job?
  - dilandau 6y ago
    That is short term assistance, it won't be free (taxpayers will have to help cover this), and when it runs out then what? In other words, I think you completely fail to understand the impact this is having on the poorest people. If they close schools again God help the single parents..
    - anoraca 6y ago
      The federal government should extend those payments until there is a national return to normal operating conditions. A deferment of rent and mortgages would solve a lot of problems that businesses/land lords/renters have.

Narkov 6y ago

Democracy to resume?? By striking down a democratically elected officials order?

cryptonector 6y ago
Yes. Courts do that a lot in case you've not noticed (EDIT: Though not in this case! From the opinion: "This case is about the assertion of power by one unelected official, Andrea Palm, ..."[0].) But in this case the issue is that a governor cannot impose law without the legislature. Wisconsin's legislature still sits -- if not in session, perhaps the governor could call it into session -- and can pass legislation. [0] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...
lainga 6y ago
This line of thinking is very close to Bonapartism as interpreted by Napoleon III. I am the democratically elected emperor; my mandate comes from the people having elected me; I may do whatever I deem in the interest of the people who have elected me.
Digory 6y ago
Democratically elected to enforce the laws, not make them, except in truly limited circumstances.
fennecfoxen 6y ago
Yes, in a dispute filed by the democratically elected members of the legislature? With the end result being that a democratically elected legislature with more than one person will have the opportunity to talk about the tradeoffs involved, make the case for constituents, and decide things like whether the response must be uniform between the dense cities and the rural countryside. This is a strict increase in democracy.
xamuel 6y ago
The order they struck down was an order issued by a non-elected bureaucrat.
- Narkov 6y ago
  Which is, of course, under the delegated authority of the governor.

cryptonector 6y ago

The legislatures have not been wiped out by covid-19. Elections are still being held too. If the legislatures wish to pass laws requiring various establishments to close down, they can pass them, and if Governors wish to have such laws on the books, they can request them of their respective legislatures. Similarly for the Federal government: Congress is still sitting, and they call their own sessions -- it can pass whatever laws are needed, and even override the President's vetoes if he does. In the U.S. it's well-accepted, long-established constitutional law that presidential executive orders simply do not and cannot have the force of statutory law without connection to an enabling statutes. The Republican Guarantee clause of the Constitution means that the States have to have separate legislative and executive branches of government, and by extension that gubernatorial EOs also can't have the force of statutory law without the support of statutes -- otherwise Governors could rule without legislatures, as kings, which would be decidedly not a republican form of government.

nelaboras 6y ago
But is it really democracy in action if a small-r Republicans holds the governor hostage?
- HideousKojima 6y ago
  Yes, obstructionism is just as much a part of democracy as passing legislation, there's no part of democracy that says legislatures have to pass anything presented to them
- vorpalhex 6y ago
  Are they really holding him hostage by taking him to task for an illegal order?
- cryptonector 6y ago
  What are you talking about. The constitutional system we have is that legislatures are Sovereigns and Executives are Heads of State. I don't care if the Wisconsin legislature is led by one party or another -- it has powers and prerogatives that it has to be jealous of. The governor is not being held hostage, rather, the legislature has to be consulted and may not be ignored.

vkou 6y ago

So, an undemocratically appointed partisan official nullifies legislature passed by democratically elected officials, and that is called a victory for democracy?

JumpCrisscross 6y ago
> an undemocratically appointed partisan official nullifies legislature passed by democratically elected officials To my knowledge, there was no such legislation. The order was issued by the executive.
- vkou 6y ago
  The legislature passed a bill that granted this power to the executive in past decades. Partisan judges felt the need to overturn that bill - despite the legislature retaining the power to override the executive, and to repeal that bill - if they could get 66% of the assembly behind it. This is the opposite of a democratic process. The democratic process has checks and balances for dealing with a rogue executive - but it requires an overwhelming support of the legislature. Instead, this ended up being decided by unelected career bureaucrats.
  - JumpCrisscross 6y ago
    > legislature passed a bill that granted this power to the executive The legislature granted specific emergency powers to the governor. Based on the decision, I don’t see the scope of those powers being met. (Specifically, the criminal consequences and open-ended timeline.) And it’s the legislature, today, bringing the case against the executive. > democratic process has checks and balances for dealing with a rogue executive - but it requires an overwhelming support of the legislature This is true in no system with the rule of law. The judiciary also checks the executive. [1] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...
  - flyingfences 6y ago
    > The legislature passed a bill that granted this power to the executive in past decades. No, the explicit holding in this case is that the executive has not been granted this power by the legislature.

dilandau 6y ago

I'm hopeful that more states will follow this lead. At the outset the shutdowns have undoubtedly helped prevent a massive tide of sickness that would have overwhelmed the healthcare system. Let's not forget that this was always the point of the shutdowns. It was never about preventing people from getting sick at some point -- it was about limiting a crush of sick people all at once. As Powell said yesterday, 40% of households making $40K or less lost their jobs in March. This is crushing those most vulnerable, economically.

anoraca 6y ago
Wouldn't they be bringing in more income from the $600/week in Federal unemployment + state unemployment than they would at their job?
- dilandau 6y ago
  That is short term assistance, it won't be free (taxpayers will have to help cover this), and when it runs out then what? In other words, I think you completely fail to understand the impact this is having on the poorest people. If they close schools again God help the single parents..
  - anoraca 6y ago
    The federal government should extend those payments until there is a national return to normal operating conditions. A deferment of rent and mortgages would solve a lot of problems that businesses/land lords/renters have.