In May, Wisconsin became the only state to emerge from a gubernatorial “stay-at-home” order by judicial decision. The decision was not based on a claim of individual liberty or, for that matter, any constitutional claim at all. Rather, it focused on statutory limits on the power of government, serving as a reminder that liberty can be served by legal limitations on the state’s general authority as well as the protection of specified freedoms.
In Wisconsin Legislature v. Palm, the Wisconsin Supreme Court held that the state’s “Safer at Home” order was invalid because it had not been adopted through administrative rule-making. It also held that a state law permitting the state’s Department of Health Services (DHS) to, among other things, take “all emergency measures necessary to control communicable diseases” did not empower DHS to order Wisconsin citizens to stay at home, forbid “non-essential” travel, or close “non-essential” businesses.
Palm grew out of an effort by Wisconsin Governor Tony Evers to extend a shutdown order imposed under a public health emergency that had been declared in early March. That emergency—which grants the governor the power to issue “orders” deemed “necessary for the security of persons and property”—had been one of the bases upon which he had issued a so-called “Safer at Home” order on March 23. That order resembled the more aggressive shutdowns ordered in March, closing businesses and schools, forbidding public gatherings, and ordering Wisconsinites to stay in their homes save for approved purposes. Gov. Evers’ initial order was set to expire on April 24 and, as its expiration approached, he wished to extend it. But under Wisconsin law, a gubernatorial emergency—and the extraordinary powers that such a declaration confers—is limited in duration. A declared emergency can be rescinded by a joint resolution of the legislature and, in all events, expires after sixty days if not extended by such a joint resolution. As the expiration of the “Safer at Home” order approached, so did the expiration of the public health emergency.
The governor, a Democrat, had a choice to make. He could either agree on the terms of an extension with the Republican legislature or find a workaround. He thought he had discovered the latter in Wisconsin Statute § 252.02, which confers broad authority on DHS to “promulgate and enforce rules or issue orders to prevent the introduction of communicable diseases into the state, for the control and suppression of such diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected” by such disease and for the sanitary care of certain public institutions. The statute also empowers DHS to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,” and it grants to DHS a broad authority to take “all emergency measures necessary to control communicable diseases.” Relying on Chapter 252, the governor instructed Acting DHS Secretary Andrea Palm to issue an order extending the “Safer at Home” order known as Executive Order 28 and also an order establishing the “Badger Bounce Back Plan,” which would set the terms under which the shutdown would be lifted. Evers and Palm argued that Chapter 252 was not dependent on the declaration of an emergency, was unlimited in duration, and was not subject to legislative oversight apart from the passage of law subject to gubernatorial veto.
But Wisconsin law also requires that agencies “shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.” A rule must be made through processes specified in the state’s Administrative Procedure Act, involving, among other things, public notice, comment, and review by a joint committee of the legislature. Executive Order 28 was not promulgated as a rule, and so the legislature filed suit, arguing that the order was invalid because it had not been promulgated as a rule, exceeded statutory authorization, and was arbitrary and capricious.
The case moved quickly. It was filed on April 21, fully briefed by the parties and fourteen amici by April 29, and argued on May 5. On May 13, by a 4-3 vote, the court agreed that the stay-at-home order was a “general order of general application” and therefore a rule within the meaning of Wisconsin law. Because it had not been promulgated as a rule, it was invalid. The majority rejected the argument that the order was not of “general application” because it was limited to the circumstances of the coronavirus pandemic. It held that the factual circumstances leading to imposition of a rule are irrelevant, noting that, under Wisconsin law, a rule is of general application when the class of people regulated “is described in general terms and new members can be added to the class . . . .” The court also noted that the challenged order regulated all persons in Wisconsin at the time it was issued and all who will come into Wisconsin in the future, and that the power claimed, even if aimed at a particular circumstance, was unlimited in duration. The court concluded that because rulemaking procedures weren’t followed, the order was invalid.
In reaching this conclusion, the court noted that violations of the stay-at-home order were punishable as a crime and that, under Wisconsin law, violation of an agency directive cannot be subject to criminal penalties unless the directive is defined by rule. Although the legislature did not claim that the order was unconstitutional, the majority emphasized the canon of constitutional doubt, noting that a legislative delegation that authorized an executive officer to take any step for any amount of time without the procedural protections provided by rule-making processes would raise serious constitutional concerns.
As noted above, the court went on to suggest that, notwithstanding the broad language of Chapter 252, the order to stay home, the prohibition of “non-essential” travel, and the identification and shuttering of “non-essential” businesses exceeded the agency’s authority. Noting Wisconsin law requiring that the authority to promulgate a rule must be explicit, the court concluded that the challenged order went too far, although it did not specify just how far a properly promulgated rule might go.
Justices Rebecca Grassl Bradley and Daniel Kelly concurred, placing greater emphasis on the separation of powers problems that would be raised by a broad interpretation of the statute. Noting that “fear never overrides the Constitution,” each would have held that a law broad enough to give a single executive officer the power to indefinitely place the state on lockdown would violate the state consitution’s separation of powers.
Three justices dissented. Justice Brian Hagedorn declined to consider “constitutional doubt” as relevant to the construction of the statute, noting that the legislature (as opposed to amici) had not challenged the consitutionality of the § 252.02 and, in fact, would lack standing to do so. Writing separately, Justice Rebecca Dallet rejected what she saw as an attempt to resurrect the “non-delegation” doctrine; she emphasized that broad delegations of legislative authority should be upheld whenever the law, “including its purpose, factual background, and context,” operated to somehow “bind the agency’s authority.” For each of the dissenters, EO 28 was not of “general application” because it was limited to the cirumstances of the coronavirus. Although it could be extended and, as the majority noted, was effectively extended by the “Badger Bounceback Order” providing that it would not be lifted unless and until certain prerequisties were met, Justice Hagedorn noted that the EO had a putative expiration date and was issued in response to a particular crisis. Because it was the expiring time limits imposed by § 323.10 that occasioned theneed for reliance on § 252.02, the dissents apparently contemplated that an order could be indefinite in duration and unlimited in scope but not of general application because it was issued in response to a specific outbreak that could be presumed to be of some fixed, but unknown, duration. The majority rejected that view, maintaining that the specific reason for the issuance of an order otherwise indefinite in duration and general in its applicability did not obviate the need for rulemaking.
Even though the legislature had asked it to do so, the court declined to delay the effective date of its order to allow DHS to promulgate a rule. Oddly, four justices “would have” granted a stay—the three dissenters and the author of the majority opinion, Chief Justice Patience Roggensack. The Chief Justice wrote separately to say that she “would have” stayed the effective date of the invalidation of EO 28 for one week. But since there were not four actual votes to stay the decision, EO 28 was immediately invalidated.
Although a rulemaking process was initiated shortly after the decision, it was promptly abandoned, with the governor contending that he and the legislature were unlikely to reach agreement. Thus, Wisconsin has been without a statewide order imposing a “stay-at-home” obligation since May 13. The Palm dissenters forecast dire consequences for the state, and the governor excoriated the majority for turning the state into the “wildwest.” A recently published study by the National Bureau of Economic Research found “no evidence” that the sudden lifting of Wisconsin’s order “impacted social distancing, COVID-19 cases, or COVID-19-related mortality” during the 14 days that followed.In the past month, Wisconsin has experienced an increase in cases although the death rate and hospitalization rates have yet to follow in a commensurate fashion. But connecting even that to the Palm decision would seem to be a heavy lift.
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 2020 WI 42.
 Wis. Stat. § 252.02(6).
 Wis. Stat. § 323 et seq.
 Wis. Stat. § 252.02(4).
 Wis. Stat. § 252.02(3).
 Wis. Stat. § 252.02(6).
 Wis. Stat. §227.10(1).
 Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979).
 Palm, 2020 WI at ¶85.
 Id. at ¶ 167, 169.
 Id. at ¶ 145 n. 11.
 Id. at ¶ 232.
 Id. at ¶ 27.
 Id. at ¶ 65.
 Id. at ¶ 129-130, 192.
 Meagan Flynn, After Wisconsin court ruling, crowds liberated and thirsty descend on bars. ‘We’re the Wild West,’ Gov. Tony Evers says, Washington Post, May 14, 2020, https://www.washingtonpost.com/nation/2020/05/14/wisconsin-bars-reopen-evers/ (last visited July 20, 2020).
 Dhaval M. Dave, et al., Did the Wisconsin Supreme Court Restart a COVID-19 Epidemic? Evidence from a Natural Experiment, NBER Working Paper No. 27322 (June 2020), https://www.nber.org/papers/w27322 (last visited July 20, 2020).