The Lesson From Wisconsin's Supreme Court

On Wednesday, a divided Wisconsin Supreme Court invalidated a draconian lockdown remarkably similar to one that passed constitutional muster in Pennsylvania. Both decisions were 4-3 rulings. In Pennsylvania, the Court rejected both statutory and constitutional objections. In Wisconsin, the court never had to rule on any constitutional question because it found that the Executive branch had exceeded its authority. Within moments of the ruling, the good people of the dairy state responded, not with milkshakes, but Miller Lite. They flooded the bars to celebrate restored freedom as the Governor groaned that his state had become the "Wild West." Dissenting Justice Rebecca Dallet complained that the ruling "will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history." In my view, the court simply ruled that the executive branch exceeded its statutory authority. But it did so with stark warnings about the danger of concentrating power into the hands of a single branch of government. The Court is also bothered that the Governor seems to think he can assert dictatorial powers indefinitely.

Chief Justice Patience Drake Roggensack noted that a "Governor's emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. For example, 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."

Justice Rebecca Gradley warned against the concentration of power in a single person, i.e. an unelected Health Secretary. Noting that all governmental power is derived "from the consent of the governed," she noted it is usually diffused among three different branches of government. "Whenever any branch of government exceeds the boundaries of authority conferred by the people, it is the duty of the judicial branch to say so." She added that the framers of the US Constitution believed that concentration of power in one branch of government is an "extraordinary threat to individual liberty," and quoted the words of James Madison in Federalist No. 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, . . . may justly be pronounced the very definition of tyranny."

She referred to Blackstone Law Dictionary, which defines a "tyrannical government as one in which 'the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men,' for 'wherever these two powers are united together, there can be no public liberty.'"

Gradley concluded with Thomas Jefferson's warning that "concentrating [all the powers of government] in the same hands is precisely the definition of despotic government."

In Pennsylvania, Governor Tom Wolf has been exercising emergency powers since mid-March. After 90 days, he can extend his own powers without the approval of the legislature. The legislature has the power to stop despotic government, but needs a 2/3 majority to do so.  Thus, we are stuck with what in essence amounts to a tyranny.

The exercise of extraordinary power by a few during times of emergency will inevitably lead to extraordinary abuses of the citizens. Pa.'s lockdown has thrown nearly 2 million Pennsylvanians, both employed and unemployed, out of work. The despotic action of Governor Wolf and Secretary Levine has been done with no regard for families that are unable to collect unemployment benefits because an uncaring state is using a 40 year-old computer system that crashes repeatedly and refuses to man the phone or answer emails.

When a lockdown was imposed by the Chinese in Wuhan, pundits noted that something like that could never happen here. It did. Amazingly, many Americans have willingly surrendered.

But not everyone.

Today, there will be another demonstration in Harrisburg from those who want the state to re-open.