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Wisconsin's legislature passed a law that gives the Department of Health the authority to issue orders in the face of a public health emergency. It is because o

Wisconsin's legislature passed a law that gives the Department of Health the authority to issue orders in the face of a public health emergency. It is because of extreme partisanship that the extremely partisan Wisconsin court has now struck down that law in a blatant act of judicial activism to get the political result they wanted.

WillPostForFood 6y ago
> struck down that law Not true, no laws were struck down. They simply overturned Emergency Order 28. DHS can even reissue the order, they just need to submit it to the appropriate legislative committee for approval. At the heart of the lawsuit was a state law governing communicable diseases that says the Department of Health Services "may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics," and gives it the power to "authorize and implement all emergency measures necessary to control communicable diseases." But the majority found Palm also had to follow another state law that requires regulations to be submitted to a legislative committee that can block them.
- bosswipe 6y ago
  Ok, they rewrote the law. The law [1] says "The department may promulgate and enforce rules or issue orders" but the court just said that they cannot issue orders, they can only promulgate rules. [1] https://docs.legis.wisconsin.gov/statutes/statutes/252/02 https://docs.legis.wisconsin.gov/statutes/statutes/252/02
  - cryptonector 6y ago
    The Court did not rewrite or invalidate 252.02. The Court held that the order in this case was a "rule" which means that "the rulemaking procedures of 227.24 were required to be followed". There's nothing about that statement that precludes an order like Emergency Order 28 from coming into force provided that its promulgation follows those rulemaking procedures. There is no rewrite. 252.02 does not exist in a vacuum -- the Court simply recognizes that other parts of Wisconsin statutory code also apply. We can debate whether the Court was right, but not whether its position is a reasonable one. Clearly, deciding that statutory rulemaking procedures apply is a reasonable position. Clearly, also, deciding that they don't apply might well also be reasonable. | We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28.
    - bosswipe 6y ago
      > The Court held that the order in this case was a "rule" 252.02 plainly says that DHS can issue orders or rules "The department may promulgate and enforce rules or issue orders". The court said they can only use rules. They made that up.
      - cryptonector 6y ago
        Are you saying I incorrectly quoted the decision? Did you read the decision?? It says the order is a rule, not that they can only use rules. It described the rationale for why it has to be considered a rule and not an order given the context. It's all quite reasonable.
        bosswipe 6y ago
        The decision invents a new law that says that DHS cannot issue an order that applies to the whole state, if it applies to the whole state it has to be a rule. Even though 252.02(04) says "Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance."
        cryptonector 6y ago
        No, this decision does not invent new law (though courts do in fact make law, and it is seen as appropriate for them to do so, both under common law and since Marbury, so inventing new law, had they done so, wouldn't necessarily be innovating). The decision specifically cites the parts of Wisconsin code that apply to rulemaking and why Emergency Order 28 is a rule and not an order. Simply quoting from one part of the Wisconsin code ignoring the other parts that apparently apply (certainly, according to the Wisc. S.C.), is not enough to win an argument.
        bosswipe 6y ago
        They found a tortured justification for the result they wanted.
deleted 6y ago
[deleted]
hanging 6y ago
extremely partisan Wisconsin court has now struck down that law in a blatant act of judicial activism "Extreme partisanship" is more evident in your complaint about a "striking down" that didn't happen of a "law" that doesn't exist. The Court upheld existing law and struck down executive actions that violated it. By the way, Supreme Court justices here in Wisconsin are elected on statewide ballots, not nominated for life like Federal judges. Your basis for calling them "extremely partisan" is, what, exactly?
- bosswipe 6y ago
  Wisconsin Statue 252.02 does exist.
  - hanging 6y ago
    The Court didn't support it. Check out the summary [0] elsewhere in these comments (not mine, but I found it helpful). [0] https://news.ycombinator.com/item?id=23173858 https://news.ycombinator.com/item?id=23173858
    - cryptonector 6y ago
      Did you read the decision? Here are some quotes: > Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. §252.02. So the Executive asserted that Emergency Order 28 is not a rule. > We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by theLegislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule."Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28. I.e., 252.02 is not the whole story.
  - cryptonector 6y ago
    The Court does not deny or rewrite that. It simply asserts that 227.24 also applies. Seems reasonable to me, since "227.24 does exist". > We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28.
cryptonector 6y ago
Your view displays no nuance and no understanding of the decision[0], which clearly does not invalidate 252.02 and does not deny the Department of Health the powers it has been granted by the Legislature. All it does is recognize that other parts of Wisconsin code also apply: - 227.01 and 227.24: > We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28. - 252.25: > Furthermore, Wis. Stat. §252.25 required that Emergency Order 28be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow,as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people. I.e., Emergency Order 28 is not even necessarily overturned, rather, "there can be no criminal penalties" for violating it. Moreover, rulemaking procedures of chapter 227 can still be engaged and Emergency Order 28 (or a new order) can still come into full force if those procedures are followed. You are either being ignorant / insufficiently careful (did not read the opinion, did not parse it, did not understand it, did not educate yourself -- one of those) or else you are displaying the "extreme partisanship" that you accuse the Court of. Court opinions that we disagree with, unless they are repugnant like Plessy vs Ferguson, are deserving of a minimum of respect, and even when they are repugnant to you, they may nonetheless be the law of the land for some time, so a more constructive take is to see how to work around a decision you disagree with. In this case the Court not only does not preclude your preferred outcome, but shows you how to get it: follow 227.24 in the process of promulgating the emergency order. [0] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...

WillPostForFood 6y ago

> struck down that law Not true, no laws were struck down. They simply overturned Emergency Order 28. DHS can even reissue the order, they just need to submit it to the appropriate legislative committee for approval. At the heart of the lawsuit was a state law governing communicable diseases that says the Department of Health Services "may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics," and gives it the power to "authorize and implement all emergency measures necessary to control communicable diseases." But the majority found Palm also had to follow another state law that requires regulations to be submitted to a legislative committee that can block them.

bosswipe 6y ago
Ok, they rewrote the law. The law [1] says "The department may promulgate and enforce rules or issue orders" but the court just said that they cannot issue orders, they can only promulgate rules. [1] https://docs.legis.wisconsin.gov/statutes/statutes/252/02 https://docs.legis.wisconsin.gov/statutes/statutes/252/02
- cryptonector 6y ago
  The Court did not rewrite or invalidate 252.02. The Court held that the order in this case was a "rule" which means that "the rulemaking procedures of 227.24 were required to be followed". There's nothing about that statement that precludes an order like Emergency Order 28 from coming into force provided that its promulgation follows those rulemaking procedures. There is no rewrite. 252.02 does not exist in a vacuum -- the Court simply recognizes that other parts of Wisconsin statutory code also apply. We can debate whether the Court was right, but not whether its position is a reasonable one. Clearly, deciding that statutory rulemaking procedures apply is a reasonable position. Clearly, also, deciding that they don't apply might well also be reasonable. | We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28.
  - bosswipe 6y ago
    > The Court held that the order in this case was a "rule" 252.02 plainly says that DHS can issue orders or rules "The department may promulgate and enforce rules or issue orders". The court said they can only use rules. They made that up.
    - cryptonector 6y ago
      Are you saying I incorrectly quoted the decision? Did you read the decision?? It says the order is a rule, not that they can only use rules. It described the rationale for why it has to be considered a rule and not an order given the context. It's all quite reasonable.
      - bosswipe 6y ago
        The decision invents a new law that says that DHS cannot issue an order that applies to the whole state, if it applies to the whole state it has to be a rule. Even though 252.02(04) says "Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance."
        cryptonector 6y ago
        No, this decision does not invent new law (though courts do in fact make law, and it is seen as appropriate for them to do so, both under common law and since Marbury, so inventing new law, had they done so, wouldn't necessarily be innovating). The decision specifically cites the parts of Wisconsin code that apply to rulemaking and why Emergency Order 28 is a rule and not an order. Simply quoting from one part of the Wisconsin code ignoring the other parts that apparently apply (certainly, according to the Wisc. S.C.), is not enough to win an argument.
        bosswipe 6y ago
        They found a tortured justification for the result they wanted.

deleted 6y ago

[deleted]

hanging 6y ago

extremely partisan Wisconsin court has now struck down that law in a blatant act of judicial activism "Extreme partisanship" is more evident in your complaint about a "striking down" that didn't happen of a "law" that doesn't exist. The Court upheld existing law and struck down executive actions that violated it. By the way, Supreme Court justices here in Wisconsin are elected on statewide ballots, not nominated for life like Federal judges. Your basis for calling them "extremely partisan" is, what, exactly?

bosswipe 6y ago
Wisconsin Statue 252.02 does exist.
- hanging 6y ago
  The Court didn't support it. Check out the summary [0] elsewhere in these comments (not mine, but I found it helpful). [0] https://news.ycombinator.com/item?id=23173858 https://news.ycombinator.com/item?id=23173858
  - cryptonector 6y ago
    Did you read the decision? Here are some quotes: > Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. §252.02. So the Executive asserted that Emergency Order 28 is not a rule. > We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by theLegislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule."Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28. I.e., 252.02 is not the whole story.
- cryptonector 6y ago
  The Court does not deny or rewrite that. It simply asserts that 227.24 also applies. Seems reasonable to me, since "227.24 does exist". > We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28.

cryptonector 6y ago

Your view displays no nuance and no understanding of the decision[0], which clearly does not invalidate 252.02 and does not deny the Department of Health the powers it has been granted by the Legislature. All it does is recognize that other parts of Wisconsin code also apply: - 227.01 and 227.24: > We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28. - 252.25: > Furthermore, Wis. Stat. §252.25 required that Emergency Order 28be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow,as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people. I.e., Emergency Order 28 is not even necessarily overturned, rather, "there can be no criminal penalties" for violating it. Moreover, rulemaking procedures of chapter 227 can still be engaged and Emergency Order 28 (or a new order) can still come into full force if those procedures are followed. You are either being ignorant / insufficiently careful (did not read the opinion, did not parse it, did not understand it, did not educate yourself -- one of those) or else you are displaying the "extreme partisanship" that you accuse the Court of. Court opinions that we disagree with, unless they are repugnant like Plessy vs Ferguson, are deserving of a minimum of respect, and even when they are repugnant to you, they may nonetheless be the law of the land for some time, so a more constructive take is to see how to work around a decision you disagree with. In this case the Court not only does not preclude your preferred outcome, but shows you how to get it: follow 227.24 in the process of promulgating the emergency order. [0] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...