Wisconsin’s Supreme Court heard arguments Thursday in another case that could reframe the power of state government to respond to the COVID-19 pandemic, reviving a debate that began when justices struck down the state’s “Safer at Home” order in May.
The latest dispute stems from an order restricting bar and restaurant capacity that expired more than a month ago, but it raises issues the court left ambiguous in its “Safer at Home” ruling.
Gov. Tony Evers’ administration issued the order on Oct. 6 through powers invoked by state Department of Health Services Secretary Andrea Palm to respond to public health emergencies.
Palm’s order restricted the size of crowds at indoor businesses like restaurants and bars. Under the order, those businesses were limited to 25 percent of their usual capacity. For example, a restaurant that could normally hold up to 200 people would be limited to a crowd of 50.
The Evers administration argues there’s a key difference in this case.
When the court struck down “Safer at Home,” it carved out an exception, stating without explanation in two footnotes in the majority opinion that it was not striking down the state’s powers to close schools.
The law that spells out the power to close schools states that DHS “may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” The Evers administration argues that Palm’s latest order did just that.
Critics of Palm’s order argue it should be struck down because it relies on part of the same law that the Supreme Court addressed when it struck down “Safer at Home.”
“We have the same agency here. We have the same pandemic. They are repackaging these same exact arguments they made the last time,” said attorney Misha Tseytlin arguing on behalf of the Mix Up, Inc., an Amery bar and grill challenging Palm’s order. “I understand the composition of this court has changed since, but the law hasn’t changed.”