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0 pointscryptonector5y ago0 comments

The Court did not rewrite or invalidate 252.02. The Court held that the order in this case was a "rule" which means that "the rulemaking procedures of 227.24 were required to be followed". There's nothing about that statement that precludes an order like Emergency Order 28 from coming into force provided that its promulgation follows those rulemaking procedures. There is no rewrite. 252.02 does not exist in a vacuum -- the Court simply recognizes that other parts of Wisconsin statutory code also apply.

We can debate whether the Court was right, but not whether its position is a reasonable one. Clearly, deciding that statutory rulemaking procedures apply is a reasonable position. Clearly, also, deciding that they don't apply might well also be reasonable.

| We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. §227.24 were required to be followed during the promulgation of Order 28.

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bosswipe5y ago

> The Court held that the order in this case was a "rule"

252.02 plainly says that DHS can issue orders or rules "The department may promulgate and enforce rules or issue orders". The court said they can only use rules. They made that up.

fennecfoxen5y ago

The court said that this, specifically, is a rule, because it introduces new criminal penalties for violating it. There is an emergency rulemaking power available in Wisconsin, but these rules were not submitted in compliance with the statues which authorize them.

The court also said that while there is authorization under other statutes to take "all emergency measures necessary to control communicable diseases," insofar as these statues are used in this way, they violate the state constitution, because this is a fundamentally legislative power given to one (unelected) member of the executive branch. That is not Constitutional in Wisconsin, and the justices write, "In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether."

A concurrence went on to quote _Ex parte Milligan_, an 1866 case in which civilians were being tried by military tribunals, ostensibly due to the exigencies of the US Civil War, about why this matters: "No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of [the Constitution's] provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism..."

cryptonectorOP5y ago

Are you saying I incorrectly quoted the decision? Did you read the decision?? It says the order is a rule, not that they can only use rules. It described the rationale for why it has to be considered a rule and not an order given the context. It's all quite reasonable.

bosswipe5y ago

The decision invents a new law that says that DHS cannot issue an order that applies to the whole state, if it applies to the whole state it has to be a rule. Even though 252.02(04) says "Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance."

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0 pointscryptonector5y ago0 comments

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bosswipe5y ago

> The Court held that the order in this case was a "rule"

252.02 plainly says that DHS can issue orders or rules "The department may promulgate and enforce rules or issue orders". The court said they can only use rules. They made that up.

fennecfoxen5y ago

cryptonectorOP5y ago

bosswipe5y ago

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