WI Legislature vs Palm

Since Tuesday, I have received several questions regarding the lawsuit that the Legislature has brought against the Secretary-designee of the Department of Health Services. So, like last week, I want to use this opportunity to answer some of those questions. 

The primary question that I want to address is "what does the lawsuit seek to accomplish?" 

The entire premise of the lawsuit is that the Department of Health Services Secretary-designee Andrea Palm (at the direction of Governor Evers) has overstepped her constitutional authority by side-stepping the Legislature and unilaterally issuing orders that create wide-sweeping policies. 

Our nation was built on a foundation of preventing tyranny, which includes a system of checks and balances. We have three, co-equal branches of government with distinct duties: the Legislative branch makes the law, the Executive branch enforces the law, and the judicial branch interprets the law. While the Legislature sometimes delegates authority to the Executive branch, such as through the rule-making process which requires legislative oversight, it does not give the Executive branch the authority to create new policies that are unfounded in existing law. 

The lawsuit argues that DHS Secretary-designee Palm stepped across her constitutional bounds by unilaterally issuing orders without using the existing rule-making process and making policies that are unfounded in existing statutes. 

In a more simple way: the lawsuit argues that the DHS Secretary is required to involve the Legislature in these policy decisions, which she has failed to do. 

After many requests to be included in the decision making process related to the pandemic, which have not been accepted by Governor Evers or Secretary-designee Palm, the Legislature is requesting that the courts require that the DHS Secretary-designee give the Legislature its constitutional right to a seat at the table. 

The next question I want to address is "if the court rules in the Legislature's favor, does the Safer-at-Home order automatically become invalid?" 

As part of the filing, the Legislature has requested a 6 day stay on the Safer-at-Home order. That means the order would stay effective for a maximum of 6 days after the ruling to ensure that the Department of Health Services has the time it needs to collaborate with the Legislature on a new plan. Without this buffer, it could ultimately lead to more confusion and chaos in the time between the ruling and promulgation of new rules. 

Lastly, I want to address "what is the Legislature's plan if they win the lawsuit?"

Let me be perfectly clear: if the court rules in the Legislature's favor, we are not proposing an immediate, go-back-to-normal plan. While COVID-19 has proven not to be as lethal as originally feared, it is important to ensure our hospitals and clinics do not become overwhelmed and continue to have the tools they need to keep providing rapid, quality care to patients. 

We are requesting that decisions made about re-opening our economy be made with stakeholder involvement (meaning our healthcare community, business community, etc.) and with complete and accurate data, while respecting individuals' constitutional rights. I hope to see more robust conversations about the costs and benefits of various policies including the human impact and the economic impact (which in turn has a very human impact). The human impact should include the impact of COVID 19 illnesses and deaths, but it also must include the impact from lack of medical care for other conditions, mental health, suicide rates, child abuse rates, domestic abuse, etc. 

Ultimately, I think there is reasonable compromise to be made that protects citizens while respecting constitutional rights. Lifting Safer-at-Home doesn't necessarily mean that music venues holding hundreds of people reopen immediately or that nursing homes should starting letting people visit en masse. Perhaps we begin with allowing businesses to reopen with reasonable sanitation and social distancing in place, then build towards a fully reopened society. 

Lastly, it is important to keep in mind that Safer at Home was never intended to stamp out COVID-19 entirely. The goal was to slow the spread to ensure our healthcare facilities are prepared and do not become overwhelmed. It is my hope this sentiment will prevail in the forthcoming conversations. 

As these conversations about reopening continue, I would love to hear your thoughts. Feel free to email or call me with your thoughts on the best approach to reopening!