Governor Mask Mandate Overruled

This past Wednesday, the Wisconsin Supreme Court overturned a public health order sent out by Governor Tony Evers. Evers repeatedly used these orders to set a state-wide mask mandate without the approval of the legislature, even after the original approved order had expired.

A first-term Democratic governor, Evers set in place the first state-wide mask mandate last summer. By using new public health orders, Evers extended the mandate, which was supposed to only stay in place until September, several times.

“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,” the Wisconsin Supreme Court’s majority opinion stated. “So long as the emergency conditions remain, the governor would possess indefinite emergency power under this atextual theory.”

Evers’ argument is that the nature of the pandemic had changed and that allowed him to continually send out emergency orders for the COVID-19 threat even after the original 60-day window had expired. The state supreme court ruled, in a 4-3 split, that the governor was not legally allowed to unilaterally make the decision to set forth 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,” the court ruled. “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.”

When it came to the scope of the analysis made by the court, the opinion of the majority stated:

“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.”

In a tweet, Evers stated that he still maintains that the fight against the COVID-19 pandemic is not over. The tweet did not mention the court or decision directly.

“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 tweeted. “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.”

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