Empower Wisconsin | Sept 23, 2020
By M.D. Kittle
MADISON — Gov. Tony Evers pushed the bounds of the constitution and state statute again Tuesday, in issuing yet another emergency health order and extending his controversial mask mandate.
Republican lawmakers called Evers’ latest overreach lawless, illegal and “not worth the paper it’s printed on,” but GOP leadership doesn’t appear willing to take on the governor through legislative resolution.
Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) sounded ready to challenge the order and extended mask mandate in court.
“Wisconsin’s lawless governor continues to rule by fiat and it must end,” Vos said in a press release. “There is already a court challenge and undoubtedly, there will be more. No one branch of government can rule outside the letter of the law and go unchecked, even during a pandemic.”
In a separate statement, Fitzgerald said Evers’ disregard for the state constitution and the role of the three branches of government is “mind-boggling.”
“The Governor’s order is not valid and is not worth the paper it’s printed on,” the senator said, adding that the order “almost assuredly is headed for litigation.”
Conservative critics in the Legislature, however, say the Republican-led Legislature doesn’t need to wait for litigation to wind its way through the courts; they can call lawmakers back into session and, with one quick vote, rescind Evers’ order.
“I fear that some Republican leaders will now hide behind a court challenge to avoid taking an up-or-down vote on rescinding the Governor’s third Covid-19 emergency declaration. A court challenge could take weeks or months to get a final decision, but citizens would still be under the dictatorial rule of an incompetent governor,” said state Sen. Steve Nass (R -Whitewater) in a statement.
The Wisconsin Institute for Law & Liberty (WILL) last month sued the Evers administration over its original mask mandate, which went into effect Aug. 1. The Milwaukee-based civil rights law firm said Evers’ declaration of a statewide emergency — his third in response to the pandemic this year — “is a clear violation of state law.” Wisconsin statute forbids a governor from unilaterally extending a public health emergency beyond 60 days or going around the law by declaring multiple 60-day emergencies.
Evers’ most recent emergency declarations have been accompanied by a mask mandate applying to all 72 counties.
The Wisconsin Supreme Court in its 4-3 ruling in May made clear that the administration would have to get legislative approval in extending a health emergency order beyond 60 days. Evers’ Department of Health Services made a lame attempt at putting together a new policy after the ruling, but withdrew after Republican lawmakers said they would not encroach on individual liberties and local jurisdiction.
“Governor Evers and his team believe the presence of COVID-19 supersedes the rule of law and our state constitution. They are wrong. Letting this gross abuse of power stand is not an option,” said Rick Esenberg, WILL’s president and general counsel.
WILL filed its lawsuit in Polk County Circuit Court on behalf of three Wisconsin residents, but the final ruling will have implications statewide. The question some lawmakers are asking is, will a ruling come soon enough to stop Evers’ “virtually unlimited … one-person rule”?
Legislative sources told Empower Wisconsin that Assembly Republicans met in caucus Tuesday afternoon, and leadership was in no mood to take on Evers through legislation. Their reluctance surprised some, who said GOP leadership sounded adamant in August that they would call the Legislature back if the governor issued a new emergency declaration and extended the order.
Evers claims he’s taking action to slow a spike in COVID-19 cases in recent days. He pushed fear once more in justifying his fiat.
“We continue to learn more about this virus, but what we do know is that we are facing a new and dangerous phase of the COVID-19 pandemic here in Wisconsin,” he said in a statement. “We are seeing an alarming increase in cases across our state, especially on campus. We need folks to start taking this seriously, and young people especially—please stay home as much as you are able, skip heading to the bars, and wear a mask whenever you go out. We need your help to stop the spread of this virus, and we all have to do this together.”
But state Sen. Chris Kapenga (R-Delafield) said the danger is not, and never has been, with overall case count, but with ensuring the state’s health system isn’t operating beyond capacity. The concern has always been availability of intensive-care unit beds.
“However, the truth is that the healthcare capacity in the state is not at risk. Our statewide capacity for ICU beds is around 1,400. Meanwhile, COVID cases that require the ICU have been hovering around 100 since June,” Kapenga said.
“It is time to end the dictatorial power grabs of Governor Evers. I implore my colleagues to step up and pass a resolution dissolving his illegal order,” the senator added.