NOTE: This blog requires some clicks to links, some reading, and some listening to a portion of a radio podcast. But it’s worth it because you will be smarter than a lot of media and other just plain misinformed citizens.
This past week I blogged that WI Supreme Court Justice Rebecca Bradley made what I considered to be the best WI quote of 2020 thus far.
The WI Supreme Court heard oral arguments regarding Gov. Evers’ extension of his stay-at-home order. Assistant Attorney General Colin T. Roth had just begun his argument in defense of Gov. Evers when Justice Rebecca Bradley read him Article 1, Section 1 of the Wisconsin Constitution.
“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 six 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,” she said. “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? Where does the Constitution say that’s permissible counsel?”
Roth yammered on an on without ever directly answering the question. Justice Bradley wasn’t done with him yet.
“I’ll direct your attention to another time in history, in the Korematsu decision, where the (Supreme 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,” said Bradley.
“Could the secretary under this broad delegation of legislative power or legislative-like power order people out of their homes into centers where are they are properly social distanced in order to combat the pandemic?” she asked, adding: “The point of my question is what are the limits, constitutional or statutory? There have to be some, don’t there, counsel?”
You could imagine the reaction. The media across the country raised eyebrows. Their consumers swallowed the Kool-Aid.
In today’s Milwaukee Journal Sentinel where even letters to the editor are weighted and slanted, this was published.I’m sure the Journal/Sentinel’s editors were working overtime, salivating profusely at the opportunity to print that baby.
On Wisconsin’s largest radio station this past week during talk show host Steve Scaffidi’s morning program Steve interviewed a frequent guest. Rick Esenberg is the founder and current President and General Counsel of the Wisconsin Institute for Law & Liberty, a rapidly expanding law and policy organization headquartered in Milwaukee.
Scaffidi sounded as if he was close to belief when he asked Esenberg how could Justice Bradley possibly pose such a question comparing the Evers’ decision to the Japanese camps. In his usual laid back style Esenberg politely, respectfully and diplomatically took Scaffidi (who is sounding less and less conservative every day he’s on the air) to school on this portion of Justice Bradley’s question.
“Unless you understand…”
Click here, hit the play button, and scroll to 44:39 of the Scaffidi podcast that begins:
And continues to:
48:14…comments Justice Bradley made.”
It’s quite educational.
Scaiffidi was caught with his pants down and no response for Esenberg.
To reiterate further, Esenberg wrote on Facebook:
We can disagree about the issues raised in the Legislature’s challenge to the Governor’s unilateral extension of the Wisconsin’s “stay at home order” but the outrage over Justice Rebecca Bradley’s question about a US Supreme Court case approving Japanese internment camps is uninformed and reflects a lack of understanding of the legal issues. The “stay at home” case was not about whether the terms of the Governor’s order are a good or bad idea. It is not about whether ordering people to stay home is “like” being in an internment camp. It is about whether the power to make rules or issue orders restricting liberty in response to a perceived emergency can be placed in the hands of a single executive officer without direction or limits on its scope. It is not about what should be done but who can do it. Justice Bradley was asking whether there were limits on what the Secretary could do to spread the control of infectious disease. Citing the US Supreme Court case, she asked whether the Secretary could send infected persons to be quarantined in a separate facility. This is how you test a legal principle. You ask whether you can accept its application in other cases. If you can’t, there may be a problem. But a hypothetical is not about what has happened; it’s about what a principle could permit to happen.
Apparently history along with legal arguments are lost on the media, and people who follow them and then would write to the same media who would gladly accept and publish their submissions.