A Wisconsin statute gives local officials broad authority to “do what is reasonable and necessary for the prevention and suppression of disease.” In accordance with this law and with a local ordinance, Dane County’s Director of Public Health issued an order to help prevent the spread of COVID-19 by prohibiting mass gatherings and close-contact sport activities. A local business and two residents sued to challenge the order. They argued, among other things, that giving health officials the authority to issue such orders violates Wisconsin’s constitution by impermissibly delegating legislative authority to them. After a court ruled in favor of the health department, the Wisconsin Supreme Court agreed to hear the case.

Along with Law Forward and Stafford Rosenbaum LLC, CAC filed an amicus brief supporting Dane County on behalf of Julian Davis Mortenson, a professor at the University of Michigan Law School and a leading scholar on constitutional history relating to legislative delegations of authority. The plaintiffs challenging the COVID order relied heavily on discussions of the “nondelegation doctrine” under the U.S. Constitution, which they analogized to Wisconsin’s constitution. Our brief showed, however, that no such doctrine exists under the original understanding of the U.S. Constitution.

As the brief explained, at the time of the Founding, legislatures across the Anglo-American world had a long tradition of delegating broad discretionary rulemaking authority to agents, who were not regarded as impermissibly “making law” when they exercised that authority. Consistent with theory and precedent, legislative delegations were a pervasive feature of state governance in America, both before and after Independence. Moreover, during the first decade after ratification of the Constitution, Congress repeatedly approved sweeping delegations of policymaking authority over the most crucial issues facing the young nation, including giving the president the power to aid quarantine efforts “in such manner as may to him appear necessary.” In short, delegating broad authority to the executive branch was not rare in the nation’s early history—it was routine. The Constitution’s original meaning therefore provides no basis for a strict nondelegation doctrine. As a result, the plaintiffs in this case could gain no support for their position by drawing comparisons between Wisconsin’s constitution and its federal counterpart.

In July 2022, the Wisconsin Supreme Court ruled in favor of Dane County, concluding that its public health director had the authority to issue the emergency orders. The Court held that the statute delegating this authority does not violate the separation-of-powers principles of Wisconsin’s constitution.