Wisconsin Supreme Court calls a Halt to Governance by Decree

by James C. Sherlock

The creation of laws in America is subject to separation of powers, as is their review for constitutionality by the courts.

The question in the current crisis is about executive orders. One-person rule was the primary fear of the founders of the republic and is exquisitely guarded against by separation of powers structures and specified individual rights in the Constitutions of the United States and of each sovereign state. Where a state doesn’t guarantee individual rights, the U.S. Constitution is supreme.

Virginia’s law granting unlimited executive authority for an unlimited period in a crisis that the Governor himself declares is a prima facie violation of both the Virginia and U.S. Constitutions.

There is a readily available remedy — participation by the General Assembly in decisions for which the Governor is instead empaneling citizen committees and then ignoring them (see in Virginia the 24-person panel on openings).

There are three available paths to the remedy:
1. The courts can find the law unconstitutionally vague and sweeping and declare it unconstitutional;
2. State legislatures can fix the problem by changing the law and overriding any gubernatorial veto, which needs to be done regardless of court actions;
3. Both

A Wisconsin Supreme Court decision yesterday chose path number one. The court Wednesday curbed the power of Gov. Tony Evers’ administration to act unilaterally during public health emergencies. To put any new limits in place, the governor and the legislature will be required to work together to deal with the peaks and valleys of the outbreak.

I am not sure what a principled objection to that ruling at this time, months into the crisis, would be. Whatever unilateral executive actions that some may have justified initially are no longer required. Legislative participation is available, and because it is available, it must be used.

The fact that the Wisconsin Governor is a Democrat and the leaders of both houses of the legislature are Republicans is actually a good thing. It will force them to work together or face the consequences of not doing so.

There is no appeal, because the state Supreme Court ruled on the basis of the state constitution. So we’ll see what happens. The Democrats and Republicans can hang together or hang separately.

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40 responses to “Wisconsin Supreme Court calls a Halt to Governance by Decree

  1. Death and destruction because of one man… because…. because… because of one man.

    Oh, wait. No, because of the woman who sees “meat packers” and “regular people”. Yeah, same logic though.

  2. Good for them. Wish we had that here a month ago.

  3. In theory, I would agree with you. In practice, I think it would be a mess. Besides, I do not see any governor, including ours, acting irresponsibly or out of control.

    As a friend of mine who was a lawyer once told me, “Any law is constitutional until a judge says otherwise.” If any member of the legislature or any restaurant owner feels unnecessarily aggrieved by Northam’s actions, the courts are available.

    • And one lawsuit brought by two GOP state senators, both quite competent attorneys, quickly hit a wall. I really haven’t read Virginia’s statute and certainly don’t know Wisconsin’s, but if Northam were that far across the line I’d expect some serious test. This business of executive authority during an emergency in a republic has roots all the way back to Roman law, always dangerous but recognizing that letting the legislators paralyze the process has its own risks. The real limit is this: if we all just blow him off and do things anyway, what the hell can he do? “Consent of the governed” remains the real rule.

  4. Representative government is not a theory, it is protected by the constitutions of Virginia and the United States.

    The courts are one of the pathways I defined and the subject of the piece. I absolutely encourage federal and state lawsuits on this issue.

    The General Assembly in its next session must rewrite the law:
    1. to make any gubernatorial declaration of emergency subject to approval by a vote of the GA within x days or it is repealed; and
    2. to limit the Governor’s power to act unilaterally under a declaration of emergency without the approval of the General Assembly to some specific period of time under defined types of emergencies.

    If you think that would be “a mess”, then I disagree and so does the constitution.

    Every governor is acting literally “out of control”, meaning outside the control of his or her legislature.

  5. The older I get, the more I appreciate the rule of law, even when I don’t like the specific results.

    “As a friend of mine who was a lawyer once told me, ‘Any law is constitutional until a judge says otherwise.’” Yet, we see Herring (and other AGs around the country from both Parties) refusing to defend laws he feels are unconstitutional. That’s not letting courts decide a vigorously advocated case.

    Clearly, a state governor, even in a weak governor state like Virginia, must be given some flexibility in the case of emergencies, most especially in the early days. But the source of a governor’s powers must come from laws enacted by the legislature. And the length and scope of emergency powers must be limited and reasonably phased out.

    • Virginia is considered a strong governor state. Ignoring his unlimited powers to rule by decree under a state of emergency he declares, the Governor’s legislative line item veto is as powerful as it gets.
      Otherwise, I agree with your sentiments.

      • Virginia’s governor is term-limited. The General Assembly is not. The GA handles judicial appointments. Certainly not a weak as the structure in Texas or South Carolina. I’d still say Virginia is on the lower half of gubernatorial power. I’m not arguing for or against this status.

        • The GA can also bring itself into session against the will of the Governor. Among the three branches, it has the greatest authority. By staying away it is endorsing Northam’s approach.

          • so WHERE does the Governor of Virginia derive his emergency powers? In the Va Constitution or is it law or both?

            Seems like if he DOES have some power in emergencies – the devil is in the details and especially so in terms of what the duration of the emergency is.

            I just don’t buy the idea that he has “exceeded” his authority until and unless I see what his “authority” is to start with.

            If a Gov DOES have some documented powers during emergencies AND it does not state a limit – a duration – then who would decide what the limit is and if there is no defined limit and no change to the document – then is it for as long as the emergency lasts?

            I just can’t see a court – deciding what the duration is… that WOULD BE “legislating from the bench”.

            and even if the Gov was inclined to let the GA go into session and to be legislating with regard to duration and/or what specific powers he has or not, etc… that would seem to be something something to the full legislative process – not just those who oppose the current duration and powers.

            In other words, the GOP alone would not be the “decider”.

          • I wish you were right, but I cannot find in the Virginia Constitution a power of the GA to convene itself outside of the constitutional dates. Let me know if I missed something.
            “Article IV. Legislature
            Section 6. Legislative sessions
            The General Assembly shall meet once each year on the second Wednesday in January. Except as herein provided for reconvened sessions, no regular session of the General Assembly convened in an even-numbered year shall continue longer than sixty days; no regular session of the General Assembly convened in an odd-numbered year shall continue longer than thirty days; but with the concurrence of two-thirds of the members elected to each house, any regular session may be extended for a period not exceeding thirty days. Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.”

            “The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require and shall convene a special session upon the application of two-thirds of the members elected to each house.”

            “The General Assembly shall reconvene on the sixth Wednesday after adjournment of each regular or special session for the purpose of considering bills which may have been returned by the Governor with recommendations for their amendment and bills and items of appropriation bills which may have been returned by the Governor with his objections. No other business shall be considered at a reconvened session. Such reconvened session shall not continue longer than three days unless the session be extended, for a period not exceeding seven additional days, upon the vote of the majority of the members elected to each house. The General Assembly may provide, by a joint resolution approved during a regular or special session by the vote of the majority of the members elected to each house, that it shall reconvene on a date after the sixth Wednesday after adjournment of the regular or special session but no later than the seventh Wednesday after adjournment.”

  6. So I have this question. Under the CURRENT Constitution and Laws – what powers does a Governor have during an emergency and what do they not have?

    During – say a hurricane or perhaps a nuclear accident or a flood or forest fire other natural or man-made calamity – what can the Governor NOT do?

    Are there things he/she CAN DO that in a non-emergency they cannot?

    • Virginia law – Code of Virginia § 44-146.17, there are no limits.

      Virginia Constitution
      Article I. Bill of Rights
      Section 1. Equality and rights of men
      “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
      Section 3. Government instituted for common benefit
      “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration …” – the law on powers of the governor as currently written is not secured against the danger of maladministration.
      Section 5. Separation of legislative, executive, and judicial departments; periodical elections
      “That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct”
      Section 7. Laws should not be suspended
      “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”
      Section 11. Due process of law; …
      “That no person shall be deprived of his life, liberty, or property without due process of law; …”
      Article III. Division of Powers. “Departments are to be distinct.”

      U.S. Constitution.
      The Bill of Rights speaks for itself. The reason that the President has published guidelines rather than executive orders governing the actions of the citizens is that such an order would violate the constitution. The horrible example of the imprisonment of Japanese-Americans in WWII is burned into the corporate memory of the federal government.

      The Guarantee Clause mandates that United States guarantee that all states have a “republican form of government.” One person rule by decree is not a republican form of government.

      The Governors are bound by that same constitution in addition to their own.

  7. Perhaps, the GA should be called back into special session that can elect to meet monthly to review the situation and address any legislative needs. I have no trouble if this is done remotely as needed. But the longer the time any governor “rules” by emergency decree, the greater the trampling of the rights of citizens.

    The Fairfax County BoS continues to meet. I suspect other local legislatures are doing the same.

    • Can anyone imagine if the GA were to vote on something like beach restrictions – how that would work?

      Are we really advocating that?

      That each of these restrictions would be basically a new law that the Administration would have to carry out? Would they also convert the law into regulation?

      in a declared emergency?

      • Yes, we absolutely are advocating that. The GA doesn’t regulate, it legislates. Legislation sets the parameters for regulation by the executive.

        Remember the linkage, the Governor himself declared the emergency that in turn because of flawed law, specifically Code of Virginia § 44-146.17, granted him unlimited powers to govern by decree.

        If the Governor has a week to consult with an ad hoc 26 person panel that he appointed, he has time to get the advice and consent of the GA that we elected.

        All you have to do to understand the consequences from your political perspective is imaging a Republican governor doing the same thing. It isn’t subjectively wrong, it is objectively wrong.

        • re: ” Remember the linkage, the Governor himself declared the emergency that in turn because of flawed law, specifically Code of Virginia § 44-146.17, granted him unlimited powers to govern by decree.”

          Are you saying that all the folks that voted for this law were wrong?

          look at the history of the law and subsequent changes:

          1973, c. 260; 1974, c. 4; 1975, c. 11; 1981, c. 116; 1990, c. 95; 1997, c. 893; 2000, c. 309; 2004, cc. 773, 1021; 2006, c. 140; 2007, cc. 729, 742; 2008, cc. 121, 157.

          This is multiple sessions of the GA and already surely a majority of GOP for a lot of it.

          How could so many people be so wrong? How come no one challenged this law before as “flawed”?

          Only now – in the middle of a partisan divide – it is now “flawed”?

          How do we know you’re not just looking at this from one side of the political divide?

      • “Can anyone imagine if the GA were to vote on something like beach restrictions – how that would work?

        “Are we really advocating that?

        A bill or bills that address the closing or reopening of beaches would introduced, considered and voted up or down. It would go to Northam for his signature or veto. The bill would likely set conditions for action and allow the Governor to follow those conditions in making his decison(s). The bill might or might not have an expiration date.

        The world can go on. Yesterday, I appeared by phone on a status conference in a federal court case in the Southern District of Iowa. So did my co-counsel, counsel for the other side, the court reporter and the judge. After the hearing, the judge entered a minute order noting for the record that the hearing was held and, later, issued a second minute order directing the parties to schedule another conference in mid-July with the obligation for the parties to file a status report and list of unresolved issues for discussion before the conference.

        I’ve been making multiple filings in the FCC’s Universal (Radio) License System during the pandemic. They are being processed. I’ve conferred with FCC staff on telephone numbering policies and am about to make application for relief with the Commission for another party. And I’m just one of thousands of lawyers.

        Virginia can keep much of its government functioning, albeit under different operating conditions. Lawmakers can make law for the administration to follow.

        • re: ” Lawmakers can make law for the administration to follow.”

          yeah, if you give them lots of time and let them argue and disagree then pass something that is not sufficient for the threat.

          DJ calls them corrupt, incompetent – a Clown-Show and they can’t even do simple things like deal with Dominion so why would we expect them to deal on a day-to-day basis – in real-time with a fast moving pandemic?

          You put the Beach question to the GA in Richmond and what would you get? Well… you’d get a hell of a lot of money from lobbyists from Virginia Beach wanting to fully open up. Right?

          And lets say they do – and then the virus does run rampant – then what do you want? You want the GA to go back into session and argue about what to do next?

          really?

  8. I love the internet! In the 1960s it would be YEARS, if ever, before the rest of the world would hear of the stupidity of the American people.

  9. re: ” Yes, we absolutely are advocating that. The GA doesn’t regulate, it legislates. Legislation sets the parameters for regulation by the executive.”

    so on duration… who decides how long an emergency declaration is for?
    is that a regulation or a law?

    re: ” All you have to do to understand the consequences from your political perspective is imaging a Republican governor doing the same thing. It isn’t subjectively wrong, it is objectively wrong.”

    and once again, you’re totally wrong.

    I think the SAME thing no matter who is gov.

    I see a situation where we have a significant emergency and the gov is unsure if he/she can proceed right away or call a session.

    the definition of an emergency – is that it’s immediate and decisions have to be made in real-time. The Govt certainly has a staff including the leadership in the cabinet – but for him/her to have to figure out how to proceed based on what a bunch of partisan folks (both sides) can figure out – will cost lives… it’s a dumb way to govern in an emergency.

    • ” …but for him/her to have to figure out how to proceed based on what a bunch of partisan folks (both sides) can figure out – will cost lives… it’s a dumb way to govern in an emergency.”

      Yes, freedom is inconvenient. Especially for those who would be King.

  10. The First Amendment to the US Constitution – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Free exercise of religion and the right to peaceably assemble. Both are guaranteed rights.

    Regardless of legislation in Virginia, regardless of the Virginia constitution … it seems like the lockdown violates The Bill of Rights.

    • then this is headed to the SCOTUS?

      DJ – do you not think a State or the Feds can forbid you to assemble anywhere you wish anytime you wish?

      I can think of a lot of places where you cannot “assemble” and/or exercise your “free speech”.

      you can’t?

      • James Wyatt Whitehead V

        My bet Mr. Larry is that the Supreme Court would consider the clear and present danger ruling of Oliver Wendell Holmes in Schenck vs. United States. That precedent might be the constitutional magic to limit freedoms.

        • There is also a concept called Martial Law. It can be a
          quagmire also.

          But I think Constitutional “freedoms” can be denied and have been before.

          It’s happened before during the civil rights era, during natural disasters, riots/insurrections,

          But what all this stuff does is make me realize that we’re not that far away from the type of civil unrest we see in some 3rd world countries with armed “militia” roaming the streets… We’re no longer that country that shows the rest of the world how Democracy “works”. It’s getting frayed.

          • ” …what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms. the remedy is to set them right as to facts, pardon & pacify them. what signify a few lives lost in a century or two? the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it’s natural manure.”

            Sounds like a call for “armed militia roaming the streets”. I wonder who wrote those words. Probably some third world dictator.

          • We know who Jefferson is and we know the difference between the Country when he was alive and now.

            People who roam the streets with guns and talking about the blood of dictators are not patriots… they are asshats.

      • I would guess it will go to SCOTUS. My understanding is that the courts generally wait to rule on actions until after an emergency has passed although Wisconsin seems to go against that theory.

        I’m no lawyer but specific bans on assembly for specific reasons over specified periods of time seem very different than a blanket ban on assembly anywhere. The founders knew that blanket bans on assembly by the government was a way to stifle criticism of that government.

        It seems to me that a months long ban on people congregating (or assembling) anywhere in a state violates the First Amendment to the US Constitution.

        Similarly, closing all churches also seems to violate the First Amendment.

        The Bill of Rights was written specifically to guarantee individual rights by forbidding government from passing laws to abridge those rights.

        Maybe the Constitution should give political leaders more flexibility during times of emergency but it doesn’t seem to do that. Not that I can tell at least.

        Capt Sherlock goes a level deeper and suggests that Northam’s orders violate the requirement that Virginia be run as a republic. At least until they are codified by the legislature in statute. I certainly see the logic of that argument. At some point the Virginia legislature needs to exercise their profiles in courage by standing up and being counted over Northam’s shutdown orders.

        Meanwhile, things are getting pretty testy in Michigan:

        https://www.washingtontimes.com/news/2020/may/14/gretchen-whitmer-michigan-governor-facing-lawsuit-/?utm_source=onesignal&utm_campaign=pushnotify&utm_medium=push

        How long until certain localities in Michigan, Virginia or elsewhere become “free enterprise sanctuary counties” by refusing to enforce the governor’s lockdown orders?

        • re: ” It seems to me that a months long ban on people congregating (or assembling) anywhere in a state violates the First Amendment to the US Constitution.”

          except that’s just not true.

          re: ” Similarly, closing all churches also seems to violate the First Amendment.”

          The churches are NOT closed. There is no order requiring them to close.

          In fact, at several Churches that I know are STILL providing food pantries to folks in need.

          Those same churches are holding church services with Facebook and Zoom.

          And their vestries are still meeting and making decisions about the Church… still arranging repairs, still open to conduct the Sunday service to broadcast, etc.

          Some of this stuff is made up on purpose to foment trouble.

          Most folks UNDERSTAND that congregating in crowds for ANY REASON is dangerous behavior that can and does lead to people dying.

          Only those who have a major anti-govt bee in their bonnet are pushing this ….

          It’s a significant number of people – about 20% of the population – but they simply do not represent most Americans who take this stuff seriously.

  11. There is a constitutional problem in the event that the government imposes stricter regulations on places of worship that aren’t placed on non-places of worship, especially if the former are willing and able to impose health-related controls – keeping non-family members at least 6 feet away from non-family members.

    Also, as time passes, and restrictions are phased out for non-places of worship, but retained for places of worship, there is a constitutional problem. I would also think that, if government retained regulations longer than necessary to placate the fear factor (a very real thing), there would also be a problem.

    The Constitution and Bill of Rights exist to protect the minority against the power of the majority. It matters not if 90% of the people want to ignore the rights of the 10%. Only in the mind of fools does people’s opinion on other’s rights matter.

    • As long as the rules are for ANY gathering and public health-related to avoid the spread of contagion – can you exempt church gatherings if in doing so it results in more contagion?

      Nothing what-so-ever to do with 10% or 90% but purely a public health issue.

      Who decides what is safe? Who decide changes to the rules as to what is safe?

      is every decision one that has to be voted on by the General Assembly?

  12. “Who decides what is safe? Who decide changes to the rules as to what is safe?”

    Both of those are questions for the Governor and the GA working in concert.

    • ……. in real-time – day to day…. can the GA meet continuously in session awaiting each days reports to decide the next steps?

      • Jim – aren’t you re-inventing the wheel here?

        Aren’t you essentially advocating that the GA stay in continuous session as long as the virus is here?

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