The Wisconsin Supreme Court on Wednesday struck down the public health orders that Governor Tony Evers (D-WI) used to repeatedly enact a state-wide mask mandate, without the approval of the legislature, even after his original one had expired.
Evers, a first-term Democratic governor, enacted the first state-wide mask mandate for last summer. Although Evers originally said the mandate would remain in effect until the end of September, he proceeded to unilaterally extend it several more times through new public health orders.
“A governor will surely have little difficultly drafting a new emergency order stating that the challenges or risks are a little different now than they were last month or last week,” reads the Wisconsin Supreme Court’s majority opinion. “So long as the emergency conditions remain, the governor would possess indefinite emergency power under this atextual theory.”
For his part, Evers argued that the nature of the pandemic had changed, which thus allowed for him to enact multiple emergency orders for the COVID-19 threat even after the expiration of the original 60-day period. The state supreme court, however, ruled 4-3 that Evers was not actually legally allowed to enact such extensions under Wisconsin law.
“We recognize that determining when a set of facts gives rise to a unique enabling condition may not always be easy,” said the court. “But here, COVID-19 has been a consistent threat, and no one can suggest this threat has gone away and then reemerged. The threat has ebbed and flowed, but this does not negate the basic reality that COVID-19 has been a significant and constant danger for a year, with no letup. In the words of the statute, the occurrence of an ‘illness or health condition’ caused by a ‘novel . . . biological agent’ has remained, unabated.”
Concerning the scope of the court’s analysis, the majority opinion noted: “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. 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.”
Evers said in a statement Wednesday that the fight against the COVID-19 pandemic was not over. The statement did not directly mention the court.
“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,” said Evers. “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.”
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.
— Governor Tony Evers (@GovEvers) March 31, 2021