A Wisconsin Supreme Court justice on Tuesday invoked the internment of Japanese-Americans during World War II during oral arguments for a challenge to the state’s controversial stay-at-home order.
The comments from Justice Rebecca Bradley were made during a virtual hearing held by the seven-member panel with lawyers for both the state and the Republican-led state Legislature. The Wisconsin Legislature filed a lawsuit last month in an attempt to reopen the state and block the extension of the stay-at-home order issued by state health officials to slow the spread of the coronavirus.
“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, who was originally appointed to the court in 2015 by then-Republican Gov. Scott Walker, while addressing state assistant Attorney General Colin Roth.
“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?”
In response to the attack on Pearl Harbor in 1941, then-President Franklin Roosevelt issued an executive order in 1942 forcing thousands of Japanese-Americans into internment camps. The Supreme Court upheld the order in the infamous 1944 case Korematsu v. United States, ruling that Roosevelt’s order was a “military necessity.” The court officially overturned the decision in June 2018.
The lawsuit was filed against Wisconsin’s Department of Health Services Secretary-designee Andrea Palm and other health officials, who recently extended the state’s “Safer at Home” emergency order until May 26, but loosened some restrictions on certain businesses, including golf courses, public libraries and arts and crafts stores. The suit seeks a temporary injunction against the order and a six-day stay so that a new emergency rule can be drawn up that’s “consistent with Wisconsin law.”
Later during the oral arguments, Bradley suggested that the state’s stay-at-home order is “the very definition of tyranny.”
“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? Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work?” the justice asked.
In another notable moment during Tuesday’s arguments, Chief Justice Patience Roggensack, first elected to the court in 2003, appeared to downplay a flare up of coronavirus cases at a major meat packing facility in the state after Roth mentioned the cluster, saying it didn’t impact “regular folks.”
People were infected “due to the meat packing, though, that’s where Brown County got the flare, it wasn’t just the regular folks in Brown County,” Roggensack said.
As of Tuesday, Wisconsin had over 8,200 confirmed cases of coronavirus and 340 confirmed deaths, according to Johns Hopkins University’s tally of cases in the United States.
At the end of the nearly two-hour hearing, Roggensack called the questions before the court complicated and noted that “there’s an awful lot of emotion” tied to the case, but didn’t say when the court would issue its decision.
Democratic Gov. Tony Evers, who had ordered Palm to issue the stay-at-home order in late March, had slammed the lawsuit after it was filed last month as “focused entirely on how to get legislative Republicans more power” and “exploiting a global pandemic to further their attempts to undermine the will of the people.” The governor also said Republicans want his administration to “ask for their permission to save lives.”