By M.D. Kittle
MADISON — The Wisconsin Supreme Court has struck down Gov. Tony Evers’ latest power grab, putting an end to the Democrat’s never-ending emergency orders and statewide mask mandates.
Interestingly, conservative Supreme Court Justice Brian Hagedorn, who has sided with liberals on questions of Evers’ authority, authored the majority (4-3) opinion.
Hagedorn notes that Evers has over the pandemic declared multiple states of emergency — expanding the governor’s executive powers.
“The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not,” Hagedorn wrote.
Milwaukee-area businessman Jere’ Fabick sued Evers claiming the governor broke the law by issuing a series of emergency orders. Fabick pointed to state statute which bars the governor from issuing states of emergency lasting longer than 60 days unless it “is extended by joint resolution of the legislature.”
Evers ignored the law, going as far as issuing a new emergency order and mask mandate in February, an hour after the Republican-controlled Legislature approved a resolution putting an end to Evers’ edicts.
The governor and his legal team argued that the Evers administration was issuing new emergency declarations to meet the changing, worsening nature of the COVID-19 health crisis. But Hagedorn said the executive branch can’t circumvent the Legislature’s authority “even when the underlying occurrence creating the emergency remains a threat.”
“…(T)he governor may not deploy his emergency powers by issuing new states of emergency for the same” emergency, Hagedorn wrote.
It was a reversal of position for Hagedorn, who in May was the only conservative on the conservative majority court to vote against a similar ruling striking down Evers’ statewide lockdown. He joined the court’s two liberals in dissenting, arguing that the executive branch was within its rights to extend the order.
The dissenters in Tuesday’s ruling offered a doomsday dissent, demanding people will die as a result of the majority opinion. They don’t believe Fabick, a Wisconsin citizen and taxpayer, even had standing to take the case to Wisconsin’s high court.
“In essence, the product of this new theory results in a standard so low that all that is needed for taxpayer standing in this court is a song and a whistle with an ability to produce a melody appealing to at least four justices,” Liberal justice Ann Walsh Bradley, derisively wrote for the court’s three liberal justices.
Republican lawmakers celebrated the ruling — cautiously.
“Once again, Governor Tony Evers and his administration has been found by the state’s highest court to be in willful violation of state law. Governor Evers has been trying to rule this state like a king since March 2020,” Sen. Steve Nass (R-Whitewater) said in a statement.
“Despite today’s victory for civil liberties, I have no doubt that Evers and his minions are not done yet.”
Evers issued a statement following the ruling declaring, “Our fight against COVID-19 isn’t over.” He invoked the word folks, per usual, and reiterated that “we know masks save lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from the pandemic.”
Many Wisconsinites have worn masks over the course of the pandemic, statewide executive order or not. Most businesses require employees and customers wear them. They don’t need the governor to mandate it, critics of Evers’ use of emergency orders assert. Besides, Democrats were quick to point out that local, unelected health officers in more restrictive cities will maintain their mask orders.
It’s not about masks, it about Evers’ abuse of power, Republican lawmakers say.
“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,” said Senate Majority Leader Devin LeMahieu. “The Governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped.’
Fabick, a prominent conservative, said his lawsuit wasn’t about politics.
“Today’s decision by the Wisconsin Supreme Court was a victory for the rule of law and the separation of powers. This case was never about partisan politics or masks. Instead, this challenge was brought to ensure that the Governor exercise his emergency powers lawfully, something of interest to all citizens of Wisconsin,” he said in a statement.