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Wisconsin Supreme Court Goes Full Korematsu. You Never Go Full Korematsu.

Wisconsin Court will reopen the state. Via Zoom, of course.

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(Image via Getty)

“I’ll direct your attention, to another time in history, in 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.”

Because in the mind of Wisconsin Supreme Court Justice Rebecca Bradley, stay-at-home orders during a pandemic are exactly the same as rounding up Japanese Americans in concentration camps.

“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?” she continued, warming to her theme of “a single unelected cabinet secretary” run amok.

Egads, not LEGISLATIVE-LIKE POWER!

The technical term for yesterday’s emergency hearing on the legality of Governor Evers’s Safer at Home Order is a shitshow. Justice Daniel Kelly, who was recently turfed out by Wisconsin voters, referred to his colleague Justice Rebecca Dallet as “Mrs. Dallet.” Justice Bradley cut off Assistant Attorney General Colin Roth to shout incoherently about “tyranny.” And Chief Justice Patience Roggensack objected to an order affecting all residents, since it was only workers in a meatpacking plant getting sick, not “regular folks.”

Yes, really, and yes, that is her actual name.

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“(The surge) was due to the meatpacking — that’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”

You could watch the whole thing here … if you have already watched literally everything else on Netflix, Prime, and Hulu.

Wisconsin’s Republican legislators, fresh off a victory forcing in-person voting during a coronavirus outbreak, have now sued to have the governor’s stay-at-home order declared illegal. And the state’s elected Supreme Court, which currently has a 5-2 Republican majority, agreed to hear it immediately, bypassing the state’s lower courts.

Naturally the hearing was conducted remotely via Zoom to protect the health of the judges. Because bitter irony is not against the law.

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As Vox’s Ian Milhiser lays out in detail, Wisconsin’s legislature insists that the health commissioner is obliged to navigate an onerous process involving publication and a ten-day waiting period to invoke any public health measures, all of which can then be overridden by the legislature. This forces the state’s elected officials to disregard the plain meaning of a statute they themselves passed, empowering the health department to “authorize and implement all emergency measures necessary to control communicable diseases” and to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemic.” But that statute was last amended in 2015, when they assumed Republican Scott Walker would be governor forever, so obviously it doesn’t count.

And it appears from the hearing that the Wisconsin Supreme Court is inclined to agree with that interpretation.

“My question for you is, where in the Constitution did the people of Wisconsin confer authority on a single, unelected cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don’t comply, with no input from the Legislature, without the consent of the people?” Justice Bradley demanded.

“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?”

And thus did a woman who throws people in jail and closes businesses for a living protect the people of Wisconsin from the tyrannical exercise of the the state’s public health officials during a viral pandemic. GO BADGERS!

Wisconsin’s Supreme Court Is Going to Use Fox News Arguments to Undo the State’s COVID-19 Restrictions [Slate]
Conservative justices appear skeptical of ‘safer at home’ extension [Wisconsin State Journal]
A Republican lawsuit could force Wisconsin to reopen immediately [Vox]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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