Republican lawmakers have been challenging stay-at-home orders despite the significant risk to public health posed by COVID-19.
On Tuesday, the Wisconsin Supreme Court heard oral arguments via teleconference on a challenge from the state's Republican lawmakers to the "safer at home" order issued by the administration of Democratic Gov. Tony Evers to protect citizens during the COVID-19 outbreak and slow the spread of the disease.
During the hearing, conservative Justice Rebecca Bradley invoked the landmark United States Supreme Court case Korematsu v. United States, which allowed the government to hold Japanese Americans in internment camps during World War II. Bradley suggested that requiring Wisconsin residents to stay home, and to keep non-essential businesses closed, was similar to that decision.
Bradly was first appointed to the circuit court in Milwaukee by then-Gov. Scott Walker in 2012 and won election to the state Supreme Court in 2016 even after columns surfaced in which she said she had no sympathy for AIDS patients — she referred to them as "queers" and "degenerate drug addicts" — and called people who voted for Bill Clinton "either totally stupid or entirely evil."
From a May 5 hearing:
JUSTICE REBECCA BRADLEY: 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, the Korematsu decision, where the 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, or legislative-like power, order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?
COLIN ROTH, assistant attorney general for Wisconsin: Your honor, Korematsu was an equal protection challenge to the action that the government took to address the crisis. This is not a substantive constitutional challenge to what DHS has done.
BRADLEY: My question goes to the scope, again, of the secretary's authority and what the limits are. What I'm hearing is, well, the Legislature doesn't need to specify the limits, it's a time of pandemic, there isn't enough time to go through rule-making, so the secretary just has to do whatever she alone deems necessary to combat the pandemic.
So, my question to you, in invoking Korematsu, is not the basis for the claims that were brought in that case versus this case. The point of my question is what are the limits, constitutional or statutory? There have to be some, don't there, counsel?
ROTH: Yes, they absolutely are your honor. Justice Bradley, I think if you read the petition for an original action that was filed with your court just last evening, there are a variety of fundamental rights-based claims that target different pieces of Executive Order 28.
On the basis of the freedom of religion, the freedom to travel, and I don't know all what's in there — it's a long petition — but there's a lot of constitutional rights in it. That is one of the fundamental backstops against an unreasonable and unconstitutional exercise of power by DHS.
Published with permission of The American Independent Foundation.