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With growing disdain in America over the restrictions put in place by local and state authorities in response to the coronavirus outbreak, restrictions that have shut down the economy and taken away the livelihoods of millions, the term “tyranny” comes to mind.
At least, it did for Wisconsin Supreme Court Justice Rebecca Bradley.
The state’s high court heard oral arguments Tuesday in a lawsuit from Republicans in the state legislature who say Health Secretary Andrea Palm exceeded her authority in ordering “non-essential” businesses to close in response to the COVID-19 pandemic, Law & Crime reported.
Bradley, a former president of the Republican National Lawyers Association, referred to Palm’s order as “tyranny,” comparing it to the internment of Japanese Americans in camps during World War Two.
Citing the state constitution, she read from Article 1, Section 1 about inherent rights and governments “deriving their just powers from the consent of the governed.”
“My question for you is, where in the Constitution did the people of Wisconsin confer authority on a single unelected cabinet secretary to compel almost six million people to stay at home and close their businesses and face imprisonment if they don’t comply, with no input from the legislature, without the consent of the people,” Justice Bradley said. “Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities? Where does the Constitution say that’s permissible counsel?”
With hairdressers and tattoo artists being arrested and taken away in handcuffs for little more than opening their doors and plying their trades, in a desperate attempt to feed their families, it’s hard not to affix the word “tyranny” to what’s happening in the country today.
Assistant Attorney General Colin T. Roth’s response was to note the state legislature enacted statutes to protect the public health, several of which granted DHS the power to “implement all emergency measures to control communicable diseases,” according to Law & Crime.
The issue came down to a question of whether Palm’s directive constituted an “order” or a “rule” under the applicable statute — violators face criminal sanctions.
The legal news site said the question is critical “because the state’s arduous rule-making procedure is extremely time-consuming and must go through several levels of bureaucratic review and mandatory waiting periods.”
Stressing the short-term impact, Roth argued that the directive is an “order” because a “rule” would implement lasting restrictions.
This is when Bradley referenced Japanese American internment during WWII.
She said: “One of the rationales that we’re hearing justifying the Secretary’s order in this case is that, ‘well it’s a pandemic and there isn’t enough time to promulgate a rule and have the legislature involved with determining the details of the scope of the Secretary’s authority.”
“I’ll direct your attention to another time in history — in the Korematsu decision — where the [Supreme] Court said the need for action was great and time was short, and that justified, and I’m quoting, assembling together and placing under guard all those of Japanese ancestry in assembly centers during World War II. Could the Secretary, under this broad delegation of legislative power order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?”
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