Could the Democratic governor of Wisconsin or the head of his state health department start rounding up citizens and putting them in social- distancing internment camps?
That was one of the questions posed by a conservative state Supreme Court justice during oral arguments in a case brought by Republican legislative leaders seeking to overturn Wisconsin’s Safer at Home order.
The same justice, Rebecca Bradley, also asked, “Isn’t it the very definition of tyranny” for “one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?”
For the record, no one in Wisconsin has been sent to prison for going to work, or for any violation of Governor Tony Evers’s Safer at Home order. That includes the 1,500-plus protesters who gathered on the lawn of the state capitol to flout the order and demand that it be rescinded.
Wisconsin state statutes specifically empower the head of the state health department to “authorize and implement all emergency measures necessary to control communicable diseases.”
In fact, despite GOP legislators’ arguments about “tyranny” and “czar-like” behavior by an executive branch run amok, Wisconsin is following a well-trodden path by giving its executive branch agencies the power to issue shutdown orders.
Mainstream conservatives are adopting the protesters’ outlandish language as Republican politicians stoke pandemic rage.
“Every state has empowered some sort of executive official to do the evolving, interpreting, real-time work of adapting to a public health crisis,” explains University of Wisconsin Law School professor Miriam Seifter, an expert in administrative law. But Wisconsin’s GOP-controlled legislature, which holds power thanks to one of the most gerrymandered maps in the country, has been trying to seize even more power from Governor Evers ever since he was elected.
That, increasingly, appears to be a model for Republican politics nationwide. Hence the coordinated GOP attack on the “tyranny” of Democratic officeholders who are trying to manage the public-health response to the COVID-19 pandemic.
Republicans, including Donald Trump, have been coy about their relationship with the Tea Party-like movement to reopen the states. They are encouraging mass protests while declining to join in those protests themselves. This is sending the public mixed messages on whether social distancing is a necessary precaution.
Mainstream conservatives are adopting the protesters’ outlandish language and claims as Republican politicians stoke pandemic rage.
Attacking government has become the GOP brand, even when there’s a Republican in the White House, and it appears that the party of Trump is planning to lean into inchoate rebellion against governors who try to tell people what to do to stop the spread of COVID-19.
It’s a dangerous game.
Clearly, a rush to reopen the country will increase infections and deaths from COVID-19.
If the country begins to reopen this summer, and infection rates start to spike in the fall, that could spell trouble, politically, for the President.
Recent polling suggests that swing-state support for Trump is eroding. A survey at the end of April by Public Policy Polling showed swing-state voters, by a large margin, trust their own governors more than Trump to handle the pandemic. In Wisconsin, voters picked Governor Evers over Trump by 54 percent to 39 percent, when asked who they “trust more to protect Wisconsin from the coronavirus”; 8 percent weren’t sure.
Across swing states, polling suggests that the pandemic is hurting Trump’s re-election chances. Trump trailed the Democrats’ presumptive nominee, former Vice President Joe Biden, in all four states polled by Public Policy Polling—Wisconsin, Michigan, Pennsylvania, and North Carolina. And in all of those states, voters trust their governors significantly more than Trump.
But Trump, who prevailed in 2016 despite losing the popular vote, is not trying to win a majority of voters. His strategy is to stir up the passions of his motivated base—people who are aroused by words like “tyranny” and who are marching on their state capitols with semiautomatic weapons.
In Wisconsin, which has a large white, rural population, Republicans and their friends in the business lobby have begun arguing that perhaps quarantines are appropriate for urban areas like Milwaukee, but not for the mostly white, rural areas that have seen lower infection rates.
This idea came up in the Supreme Court case when the legislators’ attorney, Ryan Walsh, was asked by conservative Justice Brian Hagedorn, “So, what about just applying [Safer at Home] to, say, Milwaukee County?”
“Yeah,” Walsh replied. “I think that gets much closer [to a legal order]. I think at that point you’re enumerating particular entities,” as opposed to issuing a statewide order.
The racial undertones of this line of argument also surfaced when Assistant Attorney General Colin Roth, in defending Safer at Home, warned that infection rates could “take off like wildfire” if the state reopens too quickly.
The area around Green Bay, in Brown County, Roth pointed out, had suddenly developed the highest infection rate in the state, because of an outbreak at several meat-processing facilities.
Wisconsin Supreme Court Chief Justice Patience Roggensack brushed that aside. The spike, she said, is “due to the meatpacking, though—that’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”
It wasn’t clear if Roggensack was saying that somehow the many Latinx meatpacking employees in the area are so segregated that they can’t transmit the virus to the rest of the (white) population. But the spike in cases in Brown County is already spreading rapidly through the area. The idea that rural white people are different from black and brown people, and that the same rules don’t apply to them, resonates with Republican voters.
In a pandemic, that kind of thinking will lead to disaster.
Citizens from all corners of the state filed amicus briefs in the Wisconsin Supreme Court case, pointing out the potential human costs of the legislature’s effort to quash Safer at Home.
Voces de la Frontera, an immigrant-rights group that has worked closely with meatpackers in Brown County, joined a brief by two dozen nonpartisan advocacy and community groups, Native American tribes, and labor organizations from throughout the state, pleading with the court to consider the welfare of workers.
In Milwaukee County, the same brief points out, African Americans constitute 26 percent of the population, yet as of April 8 accounted for 69 percent of all coronavirus-related deaths and twice as many positive tests for COVID-19 compared to whites. That’s not because black people are genetically different. It’s because they are subject to structural racism, which has led to higher rates of pre-existing medical conditions and less access to health care. Black and brown Americans are also more likely to live in denser, urban settings, and to work in the kinds of frontline jobs that increase their exposure.
“It is astonishing to me, as we look at the data suggesting that African Americans are tested less but are dying more than any other race, that people are now pleading to open the state back up,” the Reverend Marcus Allen, pastor of Mt. Zion Baptist Church in Madison, states in a brief filed by Wisconsin Faith Voices for Justice and supported by the Wisconsin Council of Churches and dozens of pastors, priests, rabbis, and other religious leaders.
“I don’t see how anyone, including judges, can have their thought process unaffected by the positions laid out in the amicus briefs,” says Doug Poland, an attorney who worked on the brief by community groups on the human cost of lifting Safer at Home.
And, despite the Republicans’ endorsement of a partial reopening of the state in rural areas while keeping Safer at Home in place in cities, the threat is just as great for rural residents.
“That’s part of the terrifying thing for those of us that are infectious disease experts, and experts in public health,” says Dr. James Conway, a pediatric infectious diseases specialist at the University of Wisconsin–Madison. All it takes is for someone who is infected to travel to an area that hasn’t had any COVID-19 cases yet for cases to spike. Even having different policies in different states is worrying, Conway says, pointing to how the reopening of golf courses in Wisconsin could draw golfers from Illinois.
None of these concerns came up in the legislative Republicans’ argument against Safer at Home, however.
In the end, a 4-3 majority of conservatives on Wisconsin’s Supreme Court voted to overturn Evers’s order. The Tavern League of Wisconsin celebrated, posting a notice on its website declaring that the court had found the order “unlawful, invalid and unenforceable,” and therefore “according to the ruling you can OPEN IMMEDIATELY!”
Others were not so thrilled. Dissenting Justice Rebecca Dallet called the ruling “one of the most blatant examples of judicial activism in this court’s history,” predicting that Wisconsinites will “pay the price.” And Lieutenant Governor Mandela Barnes tweeted: “Disappointed but not surprised. They put lives at risk by forcing an election, of course they were going to double down. It’s like no lives matter. This is bad.”