This post originally appeared on Harvard Law Bill of Health on June 10, 2020 here.
The Wisconsin Supreme Court recently struck down the state’s Safer at Home Order, calling it “unlawful, invalid, unenforceable.” Wisconsin Gov. Evers, politicians, and the media responded with outrage, alleging the decision would “throw the state into chaos” and demonstrated “reckless disregard for human life.”
These characterizations both misrepresent what the case was about and omit meaningful discussion of what state laws do – and do not – permit when responding to communicable disease.
In Wisconsin, the State Legislature initially filed the lawsuit against the head of the state health department, Andrea Palm, asserting that she overstepped her authority by unilaterally issuing a sweeping Safer at Home Order. This court decision (and a similar case in Michigan) emphasize that health officials may believe a particular course of action would effectively solve a public health problem, but cannot act unless they have legal authority to do so.
States have both the power and duty to protect the public from communicable disease, which may include building preparedness plans, mitigating risks, and exercising authority under laws pertaining to isolation and quarantine.
During a disease outbreak, the state executive branch can declare an emergency. But subsequent actions that state public health officials can take are bound by several areas of law.
Each state has different laws pertaining to the control of communicable disease, which recognize that exigent circumstances require swift responses. Quarantine orders are enforceable by law, and in many states, violation of a quarantine order constitutes a criminal violation with penalty of fine and or incarceration. Legislatures delegate the function of issuing and enforcing quarantine orders to state health officials in the executive branch.
Laws and orders relating to quarantine throughout history have required specific factors. Restrictions on liberties in the context of public health traditionally require state and local officials to produce evidence demonstrating how a particular individual or small geographic area has been exposed to a communicable disease, and how this specific individual or area poses a risk to the rest of the community. Next, orders apply to a highly specific location (e.g. one building, one city block, airplane or ship). Finally, they are limited in duration to monitor whether the person who was exposed develops symptoms of illness.
Narrow, specific, and time-limited quarantine orders are not novel. Why are the Safer at Home Orders different?
The Wisconsin Supreme Court decision and the pending lawsuit in Michigan note that the breadth and scope of current state orders constitutes a significant departure from the latitude of power historically exercised by a state official during an emergency.
State Supreme Court Justice Roggensack held Wisconsin’s order went “far beyond” an ordinary quarantine order because it was not confined by target, scope, or limited duration. Rather than merely closing schools, public buildings, or a specific location with confirmed cases of infection, the Order applied broadly to all people and to locations that were neither infected nor suspected of being infected. The Order placed substantial restrictions on movement and travel, prohibited all public and private gatherings, ordered business closures, and set forth prescriptive mandates on private conduct.
The crux of the case in Wisconsin focused on whether the Safer at Home Order was in fact a narrow, specific, and limited order, or whether it was a broad policy solution designed to apply to many people and sectors of society.
Here is why this distinction matters: Legislatures and state agencies must work in tandem. The legislature grants power to the state health department, then the state health department engages in rulemaking to create a comprehensive and detailed plan to accomplish the legislature’s directive.
While state public health officials do have the authority to declare an emergency, and even issue quarantine orders, they do not have authority to summarily issue sweeping measures that apply to all people, all business, and all locations without adhering to the rulemaking process, clarified Justice Roggensack.
Wisconsin law specifies if an agency wants to make a general regulation that has the force of law and applies to many people or that carries criminal penalty, it must be granted authority by the state legislature through the rulemaking process. The rulemaking process permits the state health department to hear a range of expert opinions on what constitutes an optimal strategy to protect public health and safety.
This would entail hearing evidence on a wide variety of questions: How many cases have occurred in the state? How reliable are diagnostic tests and antibody tests? What is the infection fatality rate, and importantly, how has this information changed over time as we have learned more about the virus? What evidence exists that shutting sectors of society would be effective? How should we balance competing values, and the damage that would be caused by significant economic hardship, educational disruption, and mental health stress related to forced unemployment and social isolation? What alternative models exist to facilitate societal functioning while increasing healthcare capacity and tailoring our approach?
As the Court pointed out, in a pandemic that lasts month after month, there is sufficient time to engage in deliberative – but expedited – rulemaking. Importantly, a public health approach must not constitute a myopic conclusion aimed only at attempting to slow the spread of communicable disease, but instead requires balancing varying risk assessments (including risk of the disease itself) and co-existing considerations. Indeed, multiple public health experts have noted that a blunt, aggressive approach may be both ineffective and unsustainable.
When state health officials circumvent the mechanisms that define the scope and limits on their power through unilateral lawmaking, this contravenes the Separation of Powers Doctrine: the executive branch of government does not make law on its own.
Indignation over the Court’s outcome is misplaced. Even if the public supports a specific action, the judiciary must protect the structural separation of powers — even when “consolidation of power may be tempting in times of exigency for expeditiously producing efficient and effective response.” Emergency circumstances do not grant additional power to any branch of government.
Finally, the Court issued an oft-forgotten reminder that state police power to control communicable disease is not absolute: responses must be reasonable, necessary, proportionate, and must not cause more harm than the benefits they are designed to produce. These limitations “compel restraint when restraint is not desired.” The Court stated: “individual Constitutional rights do not disappear during a public health crisis, they are always in force to restrain government action.”
As the Wisconsin Supreme Court noted, sweeping Safer at Home orders may indeed arise from benevolent intentions. But time may reveal how such polices leave untold – and unjustified – casualties in their wake. The most powerful public health response relies on deliberation, restraint, and most critically, adherence to the parameters of the authority granted by law.