The AWOL Assembly

James Wigderson:

On Tuesday, Governor Tony Evers (D) used the powers of his latest executive order regarding the Covid-19 pandemic to limit occupancy to 25% for the next month for bars, restaurants and other public spaces.

Assembly Speaker Robin Vos (R-Rochester) issued the following statement in response on Wednesday:

“Cooperation and collaboration are essential to fight this pandemic. The surge of cases and hospitalizations is real. We need everyone to work together to contain the virus: follow CDC guidelines, wear a mask, wash your hands, and maintain social distancing. I applaud the efforts at the local and county levels for their targeted measures and thank the scores of health care workers on the front lines of the pandemic.

“With respect to Emergency Order #3, the governor and secretary-designee may have good intentions but they’re disregarding the law as set forth in the state Supreme Court ruling, Legislature v. Palm. We are confident that if challenged, a Wisconsin judge would find this order invalid as an unpromulgated rule. We are asking Secretary-Designee Palm to submit an emergency rule immediately to the Joint Committee for Review of Administrative Rules as required by law. 

“With cases once again rising, it’s clear the governor’s go-it-alone, grab bag approach to responding to the coronavirus has been a failure. We must work together in order to keep our businesses open and our citizens safe. We would like to request a meeting with the governor as soon as possible to discuss answers to deal with the virus, especially solutions that don’t result in families going bankrupt and thousands being added to the unemployment lines.”

The legislature has the power to repeal Evers’ executive order if both houses pass a joint resolution. The Wisconsin Senate has been prepared to act since Evers’ began issuing a second round of executive orders in July. However, the Assembly has been reluctant to act, relying instead on a lawsuit filed by the Wisconsin Institute for Law & Liberty (WILL).

An injunction against Evers’ executive order, effectively ending a statewide mask mandate, was requested in September by WILL. Legislative leaders filed a brief in support of the lawsuit on Friday.

That case, Lindoo v. Evers, had a hearing this week. St. Croix County Judge Michael Waterman wondered why he should do anything about the executive order when the legislature has the power to overturn Evers’ order but chose not to.

“They’re asking the third branch of government — the judiciary — to step in and exercise a power that the Legislature reserved to itself,” said Waterman, according to Wisconsin Public Radio. “The court is being asked to do that when the Legislature has apparently chosen for one reason or another not to act.”

It’s a good question.

Vos and his fellow Republicans in the Assembly have a Constitutional role, too. If Vos really believes the governor is acting in an unconstitutional manner, the legislature can do something about it – and they have an obligation to do so.

Indeed, it’s worth reminding Vos and his fellow Republicans that, despite the Speaker’s statement, there is no guarantee of victory in the courts. Given Waterman’s statement, the lawsuit to overturn Evers’ executive order could be stopped simply because the legislature refused to follow the process of repealing the order.

Even if the case gets out of Waterman’s St. Croix courtroom, the last Supreme Court victory by the legislature over Evers’ abuse of his executive orders was a 4-3 decision with conservative Justice Brian Hagedorn joining the liberal minority. The composition of the court has changed with the replacement of conservative Justice Dan Kelly with liberal Justice Jill Karofsky, putting the focus back on Hagedorn.

The only sure way for Evers’ emergency order to be overturned, if Vos truly believes that it is unconstitutional, is for the legislature to act.

Let’s concede that Vos is not in an easy position. The latest Marquette University Law School poll showed 72% support a mask requirement in all public places, over 60% in every region of the state, while just 26% disagree with a mask mandate. On the flip side, a plurality of Republicans, 49% to 47%, oppose the statewide mask mandate.

The GOP is in a trap of their own making. Had the legislature acted in August to repeal Evers’ mask mandate order and then passed their own plan to combat the Covid-19 pandemic, they would be in a better place now. Instead, Evers’ is using the leeway granted by the legislature to effectively kill many of Wisconsin’s bars and restaurants to try to contain the outbreak.

And yes, the governor is playing politics with the pandemic. He could meet with legislative leaders to work out a compromise that would pass the legislature. Instead, we’re likely to get a continued stalemate even if the two sides do meet, as Vos called for in his statement. (We might even get another possibly illegal recording of the conversation for which the governor still has to answer.)

But Assembly Republicans can still act this week to repeal Evers’ executive order and show leadership with their own plan for dealing with the Covid-19 pandemic. Vos’ statement about following the CDC guidelines sounds like he’s serious about tackling the issue. In the past, the GOP has claimed to support a regional approach to fighting the pandemic. If there is any semblance of a GOP plan to combat the pandemic, the voters deserve to learn what it is.

The response by the GOP is especially needed now as the number of hospitalized Covid-19 threatens to strain our hospital system to the breaking point.

Instead of following the worst instincts of the faction of the GOP that believes nothing should be done about the exploding number of Covid-19 cases, it’s time for Vos to lead. That means from the front, not following the backside of his party’s crazy faction.

I disagree with Wigderson about that “crazy faction.” (Wigderson must be channeling his inner Charlie Sykes.) There is nothing state government can do that will stop the coronavirus from growing in this state. For that matter, there is nothing the federal government, regardless of who is president, that will stop the coronavirus from growing in this country. Evers’ Safer at Home orders did not stop COVID. The mask mandate didn’t stop it. (COVID positive tests have more than doubled since the mask mandate began Aug. 1.) The 25-percent order will only mean that 25 percent of state businesses will survive the pandemic; it won’t even slow down the coronavirus. Given the effectiveness rate of new vaccines and the annual flu vaccine, COVID-19 is not going to be stopped by any vaccine either.

It is time, however, for the Legislature to stop bending over for Evers and to stop him.

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