No. 1. The case was really about separation of powers. In a state that has experienced a partisan divide like almost none other over the last decade, the impact of divided government following Governor Scott Walker’s 2018 loss continues to reverberate. Many would argue that the court’s renewed focus on clearly establishing constitutional lines of responsibility between the executive and the legislative branches is a much-needed development. . . .
No. 2. Was Executive Order 28, the stay-at-home order, a rule or an order? The court found emphatically that the “order” was in fact a rule and therefore it should have gone through the rulemaking process, or at least the emergency rulemaking process. Emergency rulemaking expedites the normal notice and comment requirements under the state version of the Administrative Procedure Act. Lest one think the definition of “rule” is too onerous, there are 72 different exemptions under Wisconsin law for various actions that do not require rule making. . . .
No. 4. The court made clear that, while the legislature may delegate authority to agencies, it may do so only if there are “adequate standards for conducting the allocated power.” Again, this decision continues a clear trend, both in Wisconsin and elsewhere throughout the country, of courts’ reasserting the prerogatives of both the judiciary to review the legality and constitutionality of administrative actions and the legislature to employ robust tools for reining in administrative agencies that have flexed too much policy-making muscle. . . .
No. 5. It should come as no surprise that the images of law enforcement issuing warnings, and in some cases citations, to business owners trying to survive and to mothers allowing children to play with friends shocked many Wisconsinites. And the court seemed to agree by specifically finding that the issuance of criminal penalties can attach only to rules, and that therefore [Department of Health Services (“DHS”)] was in error for attaching criminal penalties to an order that bypassed the administrative rulemaking process. . . .
Mr. Curtis concluded by observing that one silver lining of this situation is reminding citizens about how much power the government can exercise over their daily lives and how important it is for them to be an "engaged and constantly skeptical citizenry."