Wisconsin Justices Block Statewide Virus Mandates in Blow to Governor

Wisconsin’s Democratic governor declared multiple states of emergency via executive orders to stem the tide of the coronavirus throughout the past year, which the state high court declared unlawful because it sidestepped legislators.

Voters wearing masks as a precaution against the coronavirus line up at Riverside High School in Milwaukee for Wisconsin’s primary election last April. (AP Photo/Morry Gash File)

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Wednesday struck down Covid-19 mandates issued by the governor and blocked the chief executive from unilaterally issuing any new ones related to the pandemic going forward.

The high court’s conservative majority split with its liberal bloc in the 4-3 decision, saying that Governor Tony Evers, a Democrat, violated state law by issuing multiple successive executive orders declaring statewide emergencies over the coronavirus without going through the Wisconsin Legislature.

Wisconsin statutes hold that states of emergency can only be extended beyond their 60-day shelf life if approved by a joint resolution of the legislature, which currently has sound Republican majorities in both the Assembly and Senate.

Wednesday’s decision effectively ends the latest statewide mask mandate enacted by Evers in February immediately after the legislature tossed the existing orders despite opposition from dozens of state organizations running the gamut from health care workers to the Oneida Nation.

Bitterly divided in philosophy and tactics, the Badger State’s Democratic executive branch and Republican legislative branch have bickered constantly this past year over how to fight Covid-19. Absent fruitful collaboration, the issue has largely been decided by state courts, with a familiar process emerging: lawmakers refuse to extend existing coronavirus mandates, so the governor issues new mandates that the legislature then fights, while the state’s 72 counties and hundreds of municipalities largely figure out virus mitigation for themselves.

For its part, the state supreme court has mostly taken Republicans’ side on the matter ever since the justices struck down Evers’ initial emergency extension in May 2020. Individual lawsuits over mask mandates and gatherings limits have also worked through the lower courts to the state’s highest judicial body in recent months.

Wednesday’s high court decision is the latest in that vein, stemming from a petition by a noteworthy GOP donor asking the court to establish the limits of the governor’s power to declare multiple states of emergency over the same crisis. The case was argued before the justices in November.

The court’s majority sided with Republicans and the legislature in a decision penned by Justice Brian Hagedorn, who laid out that “the question is not whether the governor acted wisely; it is whether he acted lawfully. We conclude that he did not.”

Hagedorn took pains to make clear that the court was not weighing in on policy choices, assuring that only violations of the law and not policy decisions influenced analysis of whether Evers overstepped his authority and went against the Wisconsin Constitution.

The conservative justice termed the public health emergency spurred by the coronavirus the “enabling condition” for Evers’ initial emergency order, but said the governor may not continue to reissue emergency orders based on the same enabling condition since the language of the statute demonstrates the legislature’s desire to prevent the chief executive from governing via emergency order.

“Therefore, where the governor relies on the same enabling condition for multiple states of emergency, or declares a new state of emergency to replace a state of emergency terminated by the legislature, the governor acts contrary to the statute’s plain meaning,” Hagedorn said.

Although the Covid-19 pandemic has ebbed and flowed, Hagedorn said, it has never gone away, remaining a consistent threat over the past year and therefore ceasing to be the kind of new, emerging public health crisis that would allow the governor to fight it with a stroke of his pen in lieu of legislative say-so.

Wisconsin Gov. Tony Evers is seen wearing a mask in Madison last July. (Wisconsin Department of Health Services via the AP, File)

In a separate concurring opinion, Justice Rebecca Bradley blasted Evers for violating constitutional separations of power and going against the intent of lawmakers elected by the people, with whom the power to decide the law lies, not the executive.

“While a pandemic may not follow the laws of men, the governor must,” Bradley concluded.

In a dissent joined by the court’s two other liberal justices, Justice Ann Walsh Bradley (no relation to Rebecca Bradley) took the majority to task for reaching an erroneous decision based on a selective statutory analysis that misinterprets the pandemic as a single circumstance instead of an ever-evolving “occurrence” with a single underlying cause. This interpretation would allow the governor to declare new emergencies over, say, a new spike in coronavirus cases, even if the pandemic has been going on for a while.

“While Covid-19 may be the underlying cause of the conditions that gave rise to [the executive orders], the disease itself is not the statutory ‘occurrence’ on which the orders are premised. In other words, the ‘occurrence’ underlying each subject order is not the pandemic itself, but conditions that the pandemic has caused,” she wrote.

The liberal justice called out the “absurdity” of Republicans’ and the majority’s interpretation, offering the analog of a heavy rain that causes a flood leading to an emergency order that would then preclude the governor from issuing another emergency order when a dam fails and causes a new flood.

“Such an interpretation would cause the governor to engage in a perverse calculation regarding when to use an emergency declaration — should he issue it now or save it and wait to see how bad things get,” undermining the time sensitivity baked into the concept of an emergency, Bradley said.

Evers defended his approach and looked forward in a statement reacting to the supreme court’s decision on Wednesday.

“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,” the governor 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.”

Senate Majority Leader Devin LeMahieu, R-Oostburg, applauded the court for “ending this constitutional crisis in our state,” saying that “the governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped.”

“Today’s ruling vindicates the legislature as a co-equal branch of government and will expand freedom and opportunity for the people of Wisconsin,” he said. “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.”

But Senator Jon Erpenbach, D-West Point, said “there are two things this pandemic has taught us, masks work and Republicans don’t,” charging GOP lawmakers as deliberately uncooperative with Evers’ every effort to fight the pandemic.

“This Republican backed lawsuit has shown that Republicans will go to any length in their vendetta against the governor even if it comes at the cost of human life,” the senator said.

Although Covid-19 metrics in Wisconsin have trended in a positive direction this year, the end of March saw an uptick of confirmed cases, with 588 new cases and 11 deaths reported on Tuesday by the state Department of Health Services. Evers announced the same day that all residents over the age of 16 will be eligible for a vaccine starting Monday.

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