End of the Eversmergencies?

James Wigderson:

In a 4-3 decision released Wednesday, the Wisconsin Supreme Court ruled that Governor Tony Evers’ cannot use successive emergency orders to tackle the same Covid-19 crisis.

“The plain language of the statute explains that the governor may, for 60 days, act with expanded powers to address a particular emergency,” Justice Brian Hagedorn wrote for the majority. “Beyond 60 days, however, the legislature reserves for itself the power to determine the policies that govern the state’s response to an ongoing problem. Similarly, when the legislature revokes a state of emergency, a governor may not simply reissue another one on the same basis.”

Evers used his emergency powers initially to close bars, restaurants and retail businesses across the state. When the governor attempted to extend the business closings, the Supreme Court ruled 4-3 against Evers in a lawsuit brought by the Wisconsin Institute for Law & Liberty (WILL).

The subsequent emergency orders from the governor authorized, and re-authorized, a statewide mask mandate. When the legislature voted to end Evers’ emergency order in February, Evers reissued the emergency order.

Republicans then called on the Supreme Court to rule on Evers’ emergency orders in a lawsuit brought last fall, Fabick v. Evers. The Court had heard oral arguments in November, but withheld issuing a ruling until now.

Studies have shown that widespread mask use reduces the spread of the Covid-19 virus. However, the challenge in the Supreme Court was not about the efficacy of masks in containing the pandemic, but whether Evers was exceeding his authority under state law.

In his opinion, Hagedorn addressed whether the Court considered the effects of repealing the statewide mask mandate.

“Some may wish our analysis would focus on ensuring the Governor has sufficient power to fight COVID-19; others may be more concerned about expansive executive power,” Hagedorn wrote. “But outside of a constitutional violation, these policy concerns are not relevant to this court’s task in construing the statute. Whether the policy choices reflected in the law give the governor too much or too little authority to respond to the present health crisis does not guide our analysis. Our inquiry is simply whether the law gives the governor the authority to successively declare states of emergency in this circumstance.”

In addition to challenging Evers’ original attempt to continue use of emergency powers, WILL filed a lawsuit challenging the emergency orders authorizing the mask mandate. That lawsuit was on hold while the Supreme Court considered Fabick v. Evers, in which WILL filed an amicus brief.

“Governor Evers abused the law and the constitutional separation of powers by declaring multiple, consecutive emergencies,” said Rick Esenberg, president and general counsel for WILL in a statement Wednesday. “This decision ensures that Wisconsin’s constitutional order cannot be suspended for unlimited periods of time as long as the executive branch can justify an emergency declaration.”

Given the reaction from Assembly Speaker Robin Vos (R-Rochester), it is highly unlikely the legislature will impose its own statewide mask mandate in the wake of the Supreme Court ruling.

“The Wisconsin Supreme Court confirmed what we already knew. Governor Evers exceeded his authority by issuing multiple emergency orders without consulting the legislature,” Vos said in a statement Wednesday. “People and businesses are free to make decisions based on what’s best for them and don’t need state government telling them how to live their lives.”

Senate Majority Leader Devin LeMahieu (R-Oostburg) framed the decision as a restoration of the balance of power between the legislature and the governor:

“I applaud the Court for ending this constitutional crisis in our state. Their ruling upholds the separation of powers and the rule of law – core principles since the founding of our state and nation. The Governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped. The Legislature exercised its authority to revoke Governor Evers’ order in February, and today the Court handed down the final rebuke of the Governor’s illegal actions.”

“Today’s ruling vindicates the Legislature as a co-equal branch of government and will expand freedom and opportunity for the people of Wisconsin. As we work to fully and safely reopen our state, we trust our residents to follow CDC guidelines when appropriate, get vaccinated when ready, and always employ common sense.”

Despite the ruling, the governor urged the public to continue wearing masks to combat the spread of Covid-19.

“Since the beginning of this pandemic, I’ve worked to keep Wisconsinites healthy and safe, and I’ve trusted the science and public health experts to guide our decision making,” Evers said. “Our fight against COVID-19 isn’t over—while we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic.”

Assembly Majority Leader Jim Steineke (R-Kaukauna) urged the governor to work with the legislature.

“Today’s ruling only validates what we’ve known all along – Governor Evers has been using his office to break the law for months. This decision is welcome, but long overdue,” Steineke said. “As we continue work to safely reopen our state, I’d encourage the governor to rethink his go-it- alone approach to leading.”

While the Court’s ruling does not address local health orders, at least one local Republican leader has made it clear that he will not be introducing a mask mandate.

“Our residents and businesses continue to make tremendous progress in overcoming the COVID-19 pandemic,” said Waukesha County Executive Paul Farrow. “More than a third of our population has now had at least one dose of vaccine, hospitalizations remain low, and our cases have dropped dramatically since the beginning of the year. With these improvements in mind, residents should be able to continue to make informed choices to protect themselves and their families from the virus without a government mandate.”

You can read the entire Wisconsin Supreme Court majority opinion and the dissents by clicking here.

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