Empower Wisconsin | July 31, 2020
By M.D. Kittle
MADISON — Ending weeks of shoulder shrugging and public handwringing, Gov. Tony Evers on Thursday announced a statewide mask mandate requiring everyone 5 and up to wear a face covering.
The executive order set to go into effect at 12:01 a.m. Saturday, was lavishly praised by Evers’ fellow Democrats and roundly blasted by conservatives and all who still value the U.S. constitution.
Those who fail to follow the mask mandate face up to $200 in fines, although it’s not clear who is going to enforce it.
The governor insists he made the decision based on the rising cases of COVID-19 in the state, but the data he uses has come under fire of late with criticisms that testing numbers have been skewed to incorrectly reflect higher infection rates.
State Sen. Steve Nass (R-Whitewater), who has raised questions in recent days about a growing backlog of negative COVID-19 test results, urged leadership in the Republican-led Legislature to call lawmakers back to session to stop Evers’ “new illegal and unnecessary emergency declaration.”
Nass noted that the Legislature need only pass a joint resolution that wouldn’t require Evers’ approval to end the mask mandate.
“Governor Evers actions today are nothing more than a political stunt to create a partisan fight with the Legislature,” Nass said in a statement. “This is not about improving public health. Today’s emergency declaration is all about the November election and the weak performance of Democrats in this state.”
Evers’ latest edict, interestingly, was announced on conservative Supreme Court Justice Daniel Kelly’s final day on the bench. It goes into effect on the first day liberal Jill Karofsky, who defeated Kelly in April’s election, begins her 10-year tenure.
Republican lawmakers noted the governor’s transparently political act — one of Evers’ few transparent actions in his year and a half in office.
Kelly joined the court’s conservative majority in May in striking down the Evers administration’s stay-at-home order. The order, first issued in March, effectively shut down the state — banning travel, closing businesses, requiring “nonessential” workers to stay home, even prohibiting church services.
Kelly and fellow conservative Justice Rebecca Grassl Bradley wrote stinging rebukes of the Department of Health Services power-grabbing orders that circumvented the Legislature. But conservative Justice Brian Hagedorn voted with the liberal minority, opining that the executive branch did not exceed its authority in extending the state lockdown.
Should the mask mandate go back before the Supreme Court, as many political observers expect it will, Hagedorn will have to decide again whether Evers has overreached.
Constitutional law expert Rick Esenberg said Evers’ order is on shaky legal ground.
“Wearing a mask is courteous and smart. But the presence of a pandemic does not negate the rule of law. Governor Evers, quite simply, lacks the legal authority to declare a second public health emergency and require every citizen to wear a mask,” said Esenberg, president and general counsel of the Milwaukee-based Wisconsin Institute for Law & Liberty.
Evers’ mandate states individuals must wear a face covering if they are indoors or in an an enclosed space other than at a private residence.
“Face coverings are strongly recommended in all other settings, including outdoors when it is not possible to maintain physical distancing,” the order states.
State Sen. Chris Kapenga (R-Delafield) said Senate Republicans would be discussing options with their legal team. He said the order “isn’t necessary; it isn’t warranted; and it isn’t backed by the data.”
“Once again, Governor Evers has overstepped his authority in an unconstitutional attempt to limit people’s freedoms by issuing this mask order,” Kapenga said in a statement. “It is a clear abuse of his emergency declaration powers in an attempt to manufacture fear and panic.”
It wasn’t clear as of Thursday, however, that Republican leadership would again press the legal issue as they did in defeating Evers’ lockdown.
“It’s disappointing that yet again Governor Evers has chosen to not communicate or work with the legislature,” Assembly Speaker Robin Vos (R-Rochester) said in a press release. “There are certainly constitutional questions here; I would expect legal challenges from citizen groups.”
Senate Majority Leader Scott Fitzgerald (R-Juneau) said he thinks the Evers administration has opened itself up to legal challenges.
“I’m also gauging the interest of my caucus when it comes to voting down the order — the Legislature should be reconvening to look at this,” Fitzgerald said.
Liberals applauded the state’s top Democrat’s mask mandate. State Sen. Chris Larson (D-Milwaukee), who bragged that his petition, gauging public support for the government order, received 16,000 signatures, sounded giddy.
“The people spoke, our Governor listened,” Larson said in a release, insisting that Evers took “bold action to slow the spread of COVID-19 in Wisconsin.”
But while the reported virus cases have indeed risen, there is growing concern that DHS and health officials may be baking the numbers.
As Nass pointed out in a press release a couple of hours before Evers announced the new order, Waukesha County has confirmed their backlog in entering negative COVID-19 test results hit 4,700. Another 4,000 have yet to show up in the DHS-released data. This comes on top of Dane County’s admission that is had 17,000 unreported negatives not included in the state COVID-19 positivity rates.
Undoubtedly, failing to include thousands of negative test results skews the numbers. There is growing suspicion that health officials are doing so intentionally, giving Evers cover to issue his mask mandate.
“At a time when liberals across Wisconsin are trying to prevent arrests and fines for actual crimes committed, the last thing law enforcement needs to do is enforce mask wearing,” state Sen. Van Wanggaard (R-Racine) said. “It is the definition of misplaced priorities. This is especially true given the under-reporting of negative cases in at least two counties with high infection rates.”
The governor’s order justifies the mask mandate by claiming “there is also an increased strain on our health care system, with a growing number of hospitalized patients and patients in intensive care units.”
That’s a stretch. The numbers remain basically flat. As of Thursday morning, there were a total of 295 COVID-19 patients in Wisconsin’s hospitals, 101 in intensive care units, according to DHS. Of the 11,492 hospital beds in the state, 2,153 were filled, or 19 percent.
Wisconsin Manufacturers & Commerce, the state’s top business advocate, voiced its concerns about the governor’s latest order.
“While WMC has encouraged social distancing and the use of facemasks to protect employee and customer health, we do not support government mandates that have questionable legal authority and put businesses in the difficult position of enforcing such an order,” Nick Novak, WMC’s vice president of communications and marketing said.
*This story has been updated to correct information regarding the order. The mandate does not require face coverings be worn in private residences.