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by Erik Gunn, Wisconsin Examiner
March 14, 2022

This story also appeared in Wisconsin Examiner

How much power should a local health officer, have to keep a community safe in the middle of a pandemic?

That question was at the heart of an hourlong debate in the Wisconsin Supreme Court last week between lawyers for Dane County’s health department and the rightwing law firm that has repeatedly gone to court to block public health protections in Wisconsin.

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

The lawsuit, filed by families and business owners represented by the Wisconsin Institute for Law & Liberty (WILL), doesn’t challenge the orders on their specific requirements. Instead, the suit asserts that the health department had no right to issue the orders at all in the absence of specific ordinances enacted by the Dane County Board.

But it also challenges an ordinance that the county board did pass — a law that directly empowered the health director to issue health orders and declared that any violations of those orders would be considered a violation of the county’s public health law.

The county board enacted that new ordinance in May 2020, authorizing the county health director to “take all measures necessary” to combat communicable diseases. The ordinance said refusing to follow health orders would violate the ordinance.

After the plaintiffs sued, a Dane County circuit court judge declined to block the health director’s orders and found nothing wrong with the county ordinance. The case was dismissed and the plaintiffs and WILL went initially to the appeals court, then bypassed that level and took the case straight to the state Supreme Court.

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

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

As for the other orders that Heinrich issued, “Dane County can have these restrictions if it wants,” Berg said. “But it needs to be adopted in an ordinance by the county board — it can’t be adopted unilaterally in an order by the local health officials.”

Remzy Bitar, the lawyer arguing for Madison, Dane County, the health department and Heinrich, told the justices that the 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 against 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.

Curbing public health powers

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

The organization filed a friend-of-the-court brief supporting the lawsuit that Republican leaders of the state Legislature filed to block the extension of the state’s Safer at Home order that the administration of Gov. Tony Evers issued in the spring of 2020 to hold down the spread of COVID-19. That lawsuit resulted in a 4-3 state Supreme Court ruling that struck down the order and said that the state Department of Health Services (DHS) would have to go through the administrative rule process to reinstate it.

WILL subsequently sued on behalf of plaintiffs who objected to the statewide mask order Evers issued in August 2020, although the March 31, 2021, Supreme Court ruling that overturned the mask order resulted from a separate lawsuit. And the conservative law firm also represented families in a lawsuit that led to the high court’s 4-3 ruling in June 2021 that the county health department lacked the authority to close schools to prevent the spread of the virus.

The organization’s challenge to the Dane County ordinance that authorized the health director’s COVID-19 orders asserts that it violates a legal principle that forbids lawmakers from handing over to others the power that only they have to write laws — the so-called non-delegation doctrine.

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

Bitar said the ordinance was “a policy choice” intended to put control of the pandemic directly in the hands of public health authorities who were best positioned to respond to it. He disputed assertions that the county board had surrendered its power.

Oversight? Or ‘dictatorship’?

Two of the justices who voted with the majority to throw out the Safer at Home order in May 2020 and block the public health department from closing schools in June 2021 signaled in last week’s arguments that they were poised to limit the powers of local health officials.

When Bitar described the county board’s desire to enable the health department to act quickly and decisively to combat the pandemic, Justice Patience Roggensack cut in.

“I give you that a dictatorship, which is what Heinrich exercised for about two years in Dane County, is the most efficient manner of handling a problem you’re focusing on, but it is not necessarily a democratic manner,” Roggensack said.

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

Later, Justice Rebecca Bradley, who wrote the decision against closing schools, asked Bitar for the basis of an order from Heinrich that limited the size of holiday gatherings in November 2020. “What gave her the authority to tell the people of Dane County that they could not have whomever they wished into their private homes on Thanksgiving Day?” Bradley asked.

That authority, Bitar responded, lay in the ordinances through which Madison and Dane County both created their joint health department.

“At the local level, there is oversight all the time,” Bitar said. “And they can pull back. They adopted an ordinance that said her orders to suppress and control the pandemic was the policy choice that they wanted to make, and it made them enforceable.”

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

Non-delegation doctrine

The focus on how much power lawmakers at any level can confer on administrators has much broader implications beyond the public health powers at stake in the Dane County case, says Marquette University political scientist Paul Nolette.

The non-delegation doctrine isn’t directly referred to 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 carry out the laws in the executive branch and the power to interpret the laws in the courts.

“You don’t want legislatures to give unaccountable agency to bureaucracies,” Nolette says.

In the 20th century, as the federal government began developing regulations to protect the public in areas such as food and drug safety and later to curb pollution and environmental damage, courts initially struck down those regulations as a form of legislation. In time, those rulings gave way to other rulings that allowed regulatory agencies to act under the supervision of Congress at the federal level and legislatures at the state level.

From food and consumer safety to environmental protection, regulations have become an increasing part of American life, and people expect the government to do more to ensure the health and safety of the public, Nolette says.

“The quantity and the complexity of modern-day regulations have really made it so you can’t run all of that through the Legislature,” he observes. “There’s got to be some element of delegation to experts in the area who can hammer out the nuts and bolts.”

After decades in which the courts essentially ignored the idea that regulations were an improper delegation of the power that belonged to lawmakers, conservative legal scholars and organizations such as WILL “are making the case for an expanded non-delegation doctrine at the state and federal level,” Nolette says.

With the Dane County case, that theory could expand that to local government as well. And depending on how broad the ruling in the case turns out to be, he adds, “it could mean that agency power really is undercut considerably.”

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