The State of Wisconsin appears to give a wide berth to the rulemaking authority of its Department of Health Services (DHS). But the State Supreme Court has just decided that they overstepped their bounds with Emergency Order 28 (EO28).
Related: Germ Warfare and Hygienic Fascism
EO28 is the state’s 21-page at home or else order. It limits activity, defines the essential and non-essential businesses, sets rules for everything, and micro-manages every aspect of life.
The power to do that is not in question. The issue relates to the criminal penalties EO28 calls out for failing to comply. According to the court,
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. Because they were not, Emergency Order 28 is unenforceable.
Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order.
If I understand correctly when an agency wants to punish people for violating its rules, that agency must follow specific procedures, and the court claims DHS did not. This makes it impossible to enforce the order voiding its severability clause. In other words, the whole thing has been tossed.
I bring it up, not to cheer the newfound liberty of the people of Wisconsin. I’m sure there will be a new EO in place as quickly as the little tyrants can craft one according to the rulemaking demands of the court. My point relates to this from yesterday.
This week the same Governor, Chris Sununu, (I was told) said towns could establish their own mask standards. As in, make them mandatory.
Where and how? What power exists at the state level to hand this authority to cities and towns. There isn’t one. They just made it up. And I don’t just mean the authority to suggest you wear a mask in public; I’m talking about the legal force required to punish those who forget or refuse.
Where is that power derived?
It’s a question I asked earlier in this report about a Salem Selectman who was pissed off about people not wearing masks or caring if it killed him. His proposal was to fine people $200.00 for not wearing a mask in public. If you doubt the town has that authority or refuse to pay, you could probably be detained.
Where do they get the authority to do this? The Governor thinks it’s okay for towns to make their own mask rules, but where does he get that authority? The legislature has passed no law but the Governor and at least one town – I guarantee there are more (Hanover, Durham, and Portsmouth are sloppy-drunk on the fear narratives) – want to punish you absent such authority.
What’s the point of separation powers and assigning them to those entities if no one gives a damn and does whatever they please? None. It’s a despotism with a third branch, the Judiciary, humming along to the tune.
The dissent in Wisconsin may not care for the majority opinion, but the majority believes that the legislature’s authority must be met by bureaucrats exercising executive powers. Niggle all you like over the finer points, but that’s entirely what our system of government is about – checks and balances.
In New Hampshire, you can’t just give local government power the legislature has not granted. You cannot, for that matter, assume power the state or Federal Constitution secures for the people. But the only “agency” attempting to check any abuse of power in New Hampshire is the people. Those few brave souls, at the least, who have the sense to realize what is being done to them.
But not enough of them.