Cases test what local government can do to protect the public

by Erik Gunn, Wisconsin Examiner
March 14, 2022

How much power should a local health worker have to keep a community safe in the midst of a pandemic?

This issue was at the heart of an hour-long debate in the Wisconsin Supreme Court last week between Dane County Health Department attorneys and the right-wing law firm that repeatedly addressed to the courts to block public health protections in Wisconsin.

The case involves orders that Madison & Dane County Public Health Director (PHMDC) Janel Heinrich has been issuing since mid-2020, in the early months of the COVID-19 pandemic. These included ordinances that limited mass gatherings and imposed capacity limits on county businesses, as well as masking and social distancing requirements.

The lawsuit, brought by families and business owners represented by the Wisconsin Institute for Law & Liberty (WILL), does not challenge the orders on their specific needs. Instead, the suit says the health department had no right to issue the orders absent specific orders enacted by Dane County Council.

But he is also challenging an ordinance the county council passed – a law that directly empowered the director of health to issue health orders and said any violation of those orders would be considered a violation of the Public Health Act of the County. county.

The county council enacted this new ordinance in May 2020, authorizing the county health director to “take all necessary steps” to control communicable diseases. The order said refusing to follow health orders would violate the order.

After the plaintiffs filed a lawsuit, a Dane County Circuit Court judge declined to block the Chief Health Officer’s orders and found no issue with the county’s order. The case was dismissed and the plaintiffs and WILL first went to the appellate court, then bypassed that level and took the case directly to the state Supreme Court.

The state public health law also says local health workers can take “all necessary steps” to control the spread of a contagious disease. But in his argument in court last week, WILL’s attorney, Luke Berg, argued that language does not confer the power to give orders with Heinrich’s authority.

Instead, he argued, state law limits the power of local health directors to actions it directly identifies, such as banning public gatherings to limit the spread of the disease.

As for other orders issued by Heinrich, “Dane County can have these restrictions if they wish,” Berg said. “But it has to be passed in an ordinance by the county council – it cannot be passed unilaterally in an ordinance by local health officials.”

Remzy Bitar, the trial attorney for Madison, Dane County, the health department and Heinrich, told judges that city and county lawmakers acted to put Heinrich and the health department in charge. as “boots on the ground at the local level” to fight the pandemic — and that they did so as democratically elected representatives of the public.

“Local governments … create these types of arrangements all the time, every day,” Bitar said.

Limitation of public health powers

The lawsuit is the latest attempt to limit the scope of public health powers in Wisconsin laws that have been around for decades — with WILL at the center of those efforts throughout the pandemic.

The organization filed a friend of the court brief supporting the lawsuit Republican leaders in the state Legislature filed to block the extension of the state’s Safer at Home ordinance that the administration of Governor Tony Evers issued in the spring of 2020 to help slow the spread of COVID-19. That lawsuit resulted in a 4-3 state Supreme Court decision that overturned the order and said the state’s Department of Health Services (DHS) should go through the administrative rule process to restore it.

WILL later sued on behalf of plaintiffs who objected to the statewide mask order that Evers issued in August 2020, although the Supreme Court’s March 31, 2021 ruling that overturned the mask order results from a separate lawsuit. And the Tory law firm also represented families in a lawsuit that led to the High Court’s 4-3 ruling in June 2021 that the county’s health department had no power to close schools to prevent the spread of the virus.

The organization’s challenge to the Dane County ordinance that authorized the Chief Health Officer’s COVID-19 orders says it violates a legal principle that prohibits lawmakers from handing over to others the power they are the only ones who write laws – the so-called doctrine of non-delegation.

“The purpose of the doctrine of non-delegation is to prevent the concentration of legislative and executive power in the hands of one person,” Berg told the justices last week. “And that’s exactly what’s happening in Dane County.”

Bitar said the order was “a political choice” intended to put control of the pandemic directly in the hands of public health authorities who were best placed to respond. He disputed claims that the county council had relinquished its power.

Monitoring? Or “dictatorship”?

Two of the justices who voted with the majority to reject the Safer at Home order in May 2020 and stop the public health department from closing schools in June 2021 signaled in arguments last week that they were on the verge limit the powers of local health officials.

When Bitar described the county council’s willingness to allow the health department to act quickly and decisively to combat the pandemic, Judge Patience Roggensack stepped in.

“I give you that a dictatorship, which Heinrich exercised for about two years in Dane County, is the most effective way to deal with an issue that you’re focused on, but it’s not necessarily a democratic way. “, said Roggensack.

Bitar objected to the description of the health orders as “a dictatorship”, but Roggensack stuck to the description.

Later, Judge Rebecca Bradley, who wrote the ruling against school closures, asked Bitar the basis of an order from Heinrich that limited the size of holiday gatherings in November 2020. “Which gave him the power to tell the people of Dane County that they couldn’t have whoever they wanted in their private homes on Thanksgiving? Bradley asked.

That authority, Bitar replied, resides in the ordinances by which Madison and Dane County both created their joint health department.

“At the local level, there is surveillance all the time,” Bitar said. “And they can back off. They passed an order that said his orders to suppress and control the pandemic were the policy choice they wanted to make, and that made them enforceable.

Bradley called this description “a loophole”. The legislature cannot delegate its legislative powers, she said, arguing that it stands to reason that local legislative bodies also cannot.

Doctrine of non-delegation

The focus on the power that lawmakers at all levels can bestow on administrators has much broader implications beyond the public health powers at stake in the Dane County case, says political scientist Paul Nolette of the Marquette University.

The non-delegation doctrine is not directly mentioned anywhere in the U.S. Constitution, but is an interpretation of the separation of powers, which vests the power to legislate in Congress, the power to enforce laws in the executive branch, and the power interpret laws in court.

“You don’t want legislatures giving unaccountable power to bureaucracies,” says Nolette.

In the 20th century, as the federal government began to develop regulations to protect the public in areas such as food and drug safety, and then to control pollution and environmental damage, the courts first struck down these regulations as a form of legislation. Over time, these rulings gave way to other rulings that allowed regulators to act under the oversight of Congress at the federal level and legislatures at the state level.

From food and consumer safety to environmental protection, regulations are increasingly a part of American life, and people expect the government to do more to ensure the health and safety of the public. , said Nolette.

“The amount and complexity of modern regulations has really made it impossible to apply all of this to the Legislative Assembly,” he observes. “There has to be an element of delegating to domain experts who can hammer out the nuts and bolts.”

After decades in which courts essentially ignored the idea that regulations were an improper delegation of power that belonged to legislators, conservative jurists and organizations such as WILL “argue for an expanded doctrine of non-delegation at the state and federal levels. “, explains Nolette.

With the case of Dane County, this theory could also extend to local government. And depending on the magnitude of the decision in the case, he adds, “it could mean that the power of the agency is really significantly reduced.”


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