By now the state has had almost a day to digest the state Supreme Court’s decision invalidating the latest Safer at Home order.
Safer at Home’s apparent demise is entirely the fault of the Evers administration, though Republicans in the state Legislature deserve blame, as I’ve written here before, for relying on the courts instead of their own legislative power to negate or at least modify Safer at Home. But the strikedown of Safer at Home is the fault of its creators, and those were not Republicans. If you do something and the legal system smacks you down, that’s your fault for doing that didn’t pass legal or constitutional muster.
There are both legal and political dimensions to this. It is impossible for me to believe that no one in the Evers administration believed there might be legal problems with the vast array of Evers’ executive orders. Lawyers are supposed to find potential legal problems, even theoretical legal problems, and if no one in the Evers administration did, then Evers (or whoever did his administration’s hiring) did a bad job of hiring legal counsel. It’s as if the Evers administration is one big echo chamber where never is heard a discouraging word.
The political dimension is even worse. I’ve quoted one of my favorite political truths that crises are crises only when people in charge act as if they are crises. That has not been the case among the political class, beginning with Evers. A statesman would have asserted that this was a serious situation, and as evidence have showed how he worked with his political opposition on something that everyone, whether they voted for him or not, should be able to live with.
Evers claimed during a press conference in April that he believed “my people” talked to “their people” — that is, respectively, Evers’ staff and staff for Assembly Speaker Robin Vos (R–Rochester) and Senate Majority Leader Scott Fitzgerald (R–Juneau) — almost every day. For those who believe Evers’ decisions are actually the decisions of his staff, notably chief of staff Maggie Gau, that was an accidentally revealing statement.
It is also revealing that Evers did not himself talk to Assembly Republicans until the lawsuit against Safer at Home was already in the Supreme Court. That and the systematic lightening of Safer at Home makes one think that decisions have been made for some time on something other than “data and science” — specifically, a political conclusion that Safer at Home wasn’t as legally safe as Evers kept asserting.
A governor who realized that he was the governor of Wisconsinites who didn’t vote for him and/or voted for Republicans to represent them in the Legislature would have followed the maxim to keep your friends close and your enemies closer by giving the opposition at least an opportunity to participate in the creation of Safer at Home. If the GOP leadership refused, Evers could have said during his news conferences that he gave the GOP a chance and they wouldn’t cooperate. If for no other reason, the political aspirations of Vos (governor) and Fitzgerald (Congress) would have forced them to work with Evers.
(The latter point is not the same thing as Evers’ assertions that the Republicans had no plan. The Republicans had at least two plans, the plan from Rep. Cory Horlacher (R–Mukwonago) and the Wisconsin Manufacturers & Commerce plan. Maybe Evers didn’t like those plans, but the GOP had plans, even though the GOP did little to advance those plans in the Legislature.)
Evers himself said he didn’t think he and the GOP were that far apart. We may find out whether that’s true given that the six-day extension sought in the GOP lawsuit wasn’t approved because the opinion written by Chief Justice Patience Roggensack said Evers and the GOP should have been working together in the period after the Supreme Court heard oral arguments in the case to come up with something that passed legal and constitutional muster.
I wish the Supreme Court had invalidated the statute upon which Safer at Home was (illegally) created. It is impossible for me to believe that those who wrote the state Constitution ever intended for unlimited governmental power to be wielded by someone for whom no one had the chance to vote on the grounds of an “emergency,” something that can be abused to, for instance, intern Japanese–Americans during World War II.
Had the Evers administration possessed some legal sense, it would have sent Safer at Home through the correct rule-making process. That would have resulted in some changes, but that would have co-opted the GOP since whichever committee(s) would have signed off on Safer at Home. That’s a real definition of “we’re all in this together,” not what those supporting lockdowns while suffering no financial hardship were asserting.
Evers has a news conference today at 1:30 p.m. I assume Evers will continue his verbal war that fired up last night against legislative Republicans. An honest governor would instead say something like this:
“The Safer at Home order was intended to protect Wisconsinites from this virus. But in doing so we made some decisions that according to the highest court in our state are not proper under state law, and we are a land of laws, not of men0. I call upon the leaders of the Legislature to work with us so that we keep Wisconsinites state in ways that are appropriate under state law and our state Constitution.”
I predict you won’t hear that today.