The past two weeks have seen two important updates to the statewide lockdown in place. First, on April 16, acting through Department of Health Services Secretary-Designee Andrea Palm, Governor Tony Evers amended his so-called “Safer at Home” Order and extended it through May 26. Second, on April 20, Governor Evers announced the “Badger Bounce Back” plan (“the Badger Plan”).

Under the Badger Plan, many of the restrictions now imposed on Wisconsin citizens and businesses will be gradually lifted when the Department of Health Services is satisfied that certain conditions specified in the Plan have been satisfied. Finally, on April 27, Secretary-Designee Palm made certain amendments to the “Safer at Home” order.

We have already written about the legality (or lack thereof) of the continuing lockdown order when and if the governor’s declaration of public health emergency expires on May 11 (here). But assuming that the continuing lockdown orders are lawful, significant practical questions arise. How does the new Safer at Home Order compare to the old one? How soon will the Badger Plan allow Wisconsinites to get back to work and resume some semblance of their normal lives? The answers are going to leave many Wisconsinites dissatisfied.

While the new Safer at Home Order includes a few notable changes, it is more or less a continuation of the old order and in many cases actually imposes additional restrictions rather than fewer. And while the Badger Plan appears to set up some numerical standards and tests for relaxing the Safer at Home Order in stages, in fact, it really provides that the governor and the Department of Health Services (“DHS”) can pretty much do whatever they want, whenever they want to do it. After a careful reading it’s hard to see how the Plan does much to inform Wisconsinites about when and how the government will end the lockdown.

“Safer at Home” 2.0

Evers’ first “Safer at Home” Order was issued on March 24. Although the details of that order (the “March Order”) will not be recounted here, a brief summary helps frame the discussion. The March Order was actually issued by Secretary-designee of DHS Andrea Palm, relying on her own authority and a separate order issued by Evers declaring a public health emergency.

Many Wisconsinites may not realize that the March Order begins by forbidding them to leave their homes. Doing so is made a crime, unless it falls within one of a number of “exceptions” to the lockdown. These include “Essential Activities” (such as obtaining necessary supplies and engaging in outdoor exercise), “Essential Governmental Functions” (such as law enforcement and child protection services), “Essential Businesses and Operations” (such as grocery stores and pharmacies), “Minimum Basic Operations” (such as inventory maintenance), “Essential Travel” (such as travel to care for vulnerable persons), and certain other “Special Situations.”

The order also sets forth the now-ubiquitous “Social Distancing Requirements” and provides that failure to follow them is also a crime.

Given the expiration of the March Order by its terms on April 24 and the state of Emergency on May 11, Evers needed to make a decision as to whether to lift the lockdown, involve legislative leaders in crafting a new plan, or continue to act on his own. He chose the latter, issuing a second Safer at Home Order (the “April Order”) that will take effect when the first one expires and last through most of May.

The new order adopts the same approach as the old one — criminal penalties for leaving the home unless one of the above-mentioned general exceptions applies. There were some key revisions, however. Most importantly from a legal perspective, the order no longer relies on the governor’s emergency declaration, which expires in May. That means DHS is relying entirely on its own statutory authority for this new iteration of the lockdown. The legal issues are discussed at the link above and are the subject of a pending petition for an original action before the Wisconsin Supreme Court.

In issuing the April order, the governor touted the success of the existing lockdown. The evidence for that claim is unclear. Since there were very few confirmed cases, deaths, or hospitalizations at the time of the March order, the only way to assess its impact is by comparison to models that purport to estimate what “would have happened” in the absence of social distancing measures. But none of these models have been shown to accurately project the course of the pandemic, nor could they. The uncomfortable fact is that while the governor may believe that the March order had some unquantifiable impact, no one can know for sure.

In fact, there is reason to believe that the models may be unduly pessimistic. Modeling done by Johns Hopkins and described by the governor as “compelling” projected 2,100 deaths and 11,900 hospitalizations in Wisconsin by May 1 if the “Safer at Home” order was implemented and kept in place for two months (extending it through and beyond that date). But, as of April 27, DHS reported only 281 deaths and, according to an April 24 letter from Evers to state Senator Van Wanggaard (R-Racine), cumulative hospitalizations were at 1,252 as of April 21.

In any event, the April Order cannot be characterized as “relaxing” the restrictions set forth in the March order, as may have been expected if the March Order “worked.” Many of its changes actually result in tighter standards rather than looser ones. For example:

  • Essential Businesses and Operations are directed to “[r]estrict the number of workers present on premises” to the extent possible; to “[i]ncrease standards of facility cleaning and disinfection”; and to “[a]dopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.”
  • Stores that permit in-person sales are directed to limit the number of customers in the store, establish special hours for vulnerable populations, and “use alternatives to lines.”
  • “[L]ocal health officials” are permitted to close “[p]ublic parks and open space” if certain conditions are met such as repeated violations of the Order or too many visitors to permit compliance with social distancing requirements.
  • Essential Travel is left in place as an exception, but “[i]ndividuals are strongly encouraged to remain at their primary residence or home” and again “strongly discouraged from engaging in unnecessary travel.”

But the April Order is not entirely a one-way ratchet. Probably most notable is the expansion of “Minimum Basic Operations.”

Originally, these appeared to be business operations that were deemed non-essential, yet were permitted from some compelling reason. In the March Order, this included, for instance, “[t]he minimum necessary activities to maintain the value of the business’s inventory,” to “process payroll and employee benefits,” and to permit remote work.

DHS has added delivery and mailings, curb-side pick-up, and “aesthetic or optional exterior work” (i.e. construction and lawn care) if strict guidelines are complied with. To give one example, curb-side pick-up for non-essential businesses is generally permitted if, among other things, “all of the operations are performed by one person in a room or confined space at a time.” For “aesthetic or optional exterior work,” only one person may be present at the job site.[1]

Finally, the April Order removes a level of restrictions from a handful of discrete types of businesses or services, including public libraries, golf courses, and arts and crafts stores.

But in most ways, Safer at Home 2.0 is just more of the same.

The justification for a continuation of the status quo once again lies in a model. Modeling done for the Department of Health Services by Johns Hopkins projects peaks that will substantially exceed hospital capacity if the Safer at Home level is lifted. The Hopkins projections appear to have substantially overstated the number of deaths, hospitalizations, commitments to the ICU, and ventilator use for the period following the March order, suggesting that it may be overly pessimistic. But it is important to note that, even accepting the model, this peak will be hit even if the order is extended to June 26.

Badger Bounce Back or Dead Badger Bounce?

After weeks of confinement, the most pressing question for many Wisconsinites has been when the lockdown requirements will ultimately lift. Shortly after imposing Safer at Home 2.0, Evers released a plan to reopen the state that his administration is calling the “Badger Bounce Back.” Alliteration aside, what does Evers’ plan look like?

The Badger Plan is in large part modeled off of President Donald Trump’s Guidelines for Opening Up America Again, with some notable exceptions. It utilizes three concepts: Phases, Gating Criteria, and Core Responsibilities. Examination of each discloses that the Plan is short on substance, based on milestones that are unclear and difficult to measure, and leaves the decisions about when and how to reopen the Wisconsin economy up to the unfettered discretion of DHS.

Phases. Evers envisions a gradual loosening of restrictions in three phases. The descriptions are brief enough that they may be quoted in full here:

  • Phase One “will include allowing mass gatherings of up to 10 people; restaurants opening with social distancing requirements; removal of certain restrictions including retail restrictions for Essential Businesses and Operations; additional operations for non-essential businesses; K-12 schools to resume in-person operation; and child care settings resuming full operation.”
  • Phase Two “will include allowing mass gatherings of up to 50 people; restaurants resuming full operation; bars reopening with social distancing requirements; non-essential businesses resuming operations with social distancing requirements; and postsecondary education institutions may resume operation.”
  • Phase Three “will resume all business activity and gatherings, with minimal protective and preventative measures in place for the general public and more protective measures for vulnerable populations.”

Importantly, these descriptions are intended merely as summaries and may or may not reflect what activities will be forbidden or permitted during each phase. DHS “shall announce the transition to each Phase with an order fully articulating the activities that will [or will not] resume.”

The most we can say is that Phase One will be whatever DHS says it is.

Gating Criteria. The Gating Criteria are metrics that must be met in Wisconsin before the state can transition even into Phase One. They require a “downward trajectory” of (a) influenza-like illnesses reported within a 14-day period; (b) COVID-19-like syndromic cases reported in a 14-day period; and (c) positive tests as a percent of total tests within a 14-day period, along with additional benchmarks to be met by hospitals such as the presence of “[r]obust testing programs . . . for at-risk healthcare workers.”

The Gating Criteria track the federal guidelines with one addition and one subtraction. Unlike the federal guidelines, the Badger Plan requires a “[d]ecreasing number of infected healthcare workers.” And while the federal guidelines would allow a “[d]ownward trajectory of documented cases within a 14-day period” as an alternate to the “positive tests” benchmark described above, the Badger Plan does not permit this substitution.

The Plan does not explicitly say when and how the decision that the State has satisfied these gating requirements will be made. The absence of direction is significant since the gating requirements themselves are unclear. How DHS will define or measure the number of cases with “influenza” or “COVID-19” symptoms is not specified. Nor does the order explain how “Influenza” symptoms and “COVID-19” symptoms are to be distinguished since the Badger Plan treats them separately and requires that both experience a 14-day decline.

Even more fundamentally, the Badger Plan does not explain what constitutes a 14-day decline. Is it a decline in the number of reported cases or positive tests for each day within a 14-day period or a decline from the number of new cases or positive tests on the first day of the period as compared to the final day? Is it a decline in daily averages for a 14-day period as compared to the prior 14 days? Must a curve fitted to daily totals during the 14 days have a negative slope? Initially, the Governor was quoted as saying there must be a 14 consecutive day decline although consideration would be given to making allowance for an “anomalous” day. More recently it was suggested that a “rolling average” would be used.

The most we can say is that the gating requirements will be met when DHS says so.

Core Responsibilities. These are additional benchmarks in five key areas: testing; tracing; tracking; personal protective equipment; and health care capacity. Although the criteria appear to be loosely based on the federal guidelines, the origin of the exact numbers (e.g., 85,000 tests per week or approximately 12,000 tests per day) is not evident from the text of the order.

And, more importantly, “benchmark” is a bit of a misnomer. The Badger Plan states only that “[t]o move to the next Phase, the state must make progress toward” the Core Responsibilities. That presumably includes Phase 1, which means that the existing lockdown will continue until such progress has been made. “Progress,” of course, can mean a lot of different things.

The most we can say is that the Core Responsibilities will be met when DHS says that they have been met.

Taken together, then, the Badger Plan is not much of a plan at all. It says that there are certain necessary conditions for reopening the state, but never explains what conditions are sufficient for reopening or even for moving from one phase to another. In addition, the Plan reserves to DHS the ability to loosen restrictions “if it is determined that removing the restrictions will have minimal impact on the state’s ability to meet its Core Responsibilities and Gating Criteria” and to tighten restrictions in particular areas to address “localized outbreaks.” This gives DHS the “flexibility” to make far-reaching decisions about how the Wisconsin economy will be permitted to operate, and to make them up as it goes along.

Who knows, and who could possibly know, what that might mean? A hint may be provided by the administration’s reliance on modeling done by Johns Hopkins. That model purports to show that the state can avoid exceeding hospital capacity only by South Korean-style testing, isolation, and contact tracing. In the letter to Wanggaard, Evers declined to say when the testing objective — much less those for isolation and contact tracing — might be met.

Conclusion

While flexibility has value, so does a clear set of guidelines. Those Wisconsinites looking for a glimpse of the return to normalcy are going to be disappointed and will have to look elsewhere for a ray of hope. It is not simply that the Badger Plan does not make any promises. It does not even describe a set of concrete conditions for a presumptive re-opening. Its Gating Criteria are not only not binding; they are inadequately defined. Each phase is vaguely defined and subject to revision. Progress toward Core Responsibilities is undefined.

Wisconsinites have been asked to live under unprecedented restrictions. They have been told that doing so is necessary to “flatten the curve” so the virus spreads more slowly and does not overwhelm the health care system. Over a month in, there is still no clear definition of “success.” At a certain level, this is understandable.

Given that there is still much we do not know about the virus, continuing or beginning to lift the lockdown will require an assessment of costs and benefits rooted in probabilities and educated guesses, rather than scientific certainty. Hedging is an all too human response. But that doesn’t mean that it is an adequate one.

Rick Esenberg is President and General Counsel for the Wisconsin Institute for Law & Liberty.

Mike Fischer is Senior Counsel with the Wisconsin Institute for Law & Liberty.

Anthony LoCoco is an associate counsel at the Wisconsin Institute for Law & Liberty.

[1] On April 27, Secretary-Designee Palm issued Emergency Order #34, the “Interim Order to Turn the Dial.” The order adds to Minimum Basic Operations three additional exceptions: (a) “customer curb-side drop-off of goods or animals for the purpose of having those goods or animals serviced, repaired, or cared for by the business” ; (b) “rental of recreational equipment”; and (c) car washes. As usual, each exception is subject to certain listed conditions.