Earlier today, the Wisconsin Supreme Court heard oral arguments in a case seeking to overturn Governor Tony Evers’ emergency mask mandate.
The court has already ruled against Evers’ public health orders once, voting 4-3 to overturn his Safer at Home order in May. And at the heart of today’s case is another challenge to the Governor’s authority to issue emergency orders during the COVID-19 pandemic.
The case is being brought by GOP donor and conservative activist Jeré Fabick. According to the Associated Press, Fabick has donated $350,000 to various Republican candidates over the past 25 years — including current Wisconsin Supreme Court Justice Rebecca Bradley, who has not recused herself from the case.
His attorneys argue that, under Wisconsin state statute, the Governor is only allowed to issue a single, 60-day emergency order for any given emergency — including a protracted one, such as the pandemic.
If the court sides in their favor, it could wipe out the Governor’s two current emergency orders, a statewide mask mandate and a limit on indoor gatherings. It could also significantly hamper Evers’ ability to respond to the pandemic, forcing him to negotiate with a hostile, Republican-controlled state assembly.
Attorney Matthew Fernholz, representing Fabick, argued that the Governor required legislative approval before issuing any subsequent orders past his initial Safer at Home order.
“The governor has labeled COVID-19 a public health emergency,” Fernholz said. “We acknowledge that it meets that definition, but for him to keep Wisconsin in a state of emergency — which gives him all sorts of broad powers — to invoke that power, he needs approval from the legislature. He has not done that here.”
Rick Esenberg — President and General Counsel for the Wisconsin Institute for Law and Liberty (WILL) — told justices today that the governor’s emergency orders illegally consolidate power in the Executive branch.
“At some point, we must return to constitutional order,” Esenberg said. “To permit this type of delegation would flip our constitutional system on its head. It would invert it from one in which the legislature makes the law, subject to executive veto — to one in which the executive makes the law, subject not even really to legislative veto, but to reclamation of its constitutional authority.”
Esenberg, and WILL, are frequent opponents of the Evers administration.
They’ve previously challenged the statewide mask mandate, but were shut down by St. Croix County Circuit Judge R. Michael Waterman. Waterman argued that there are no caps on how many emergency orders the governor can issue, as long as the crisis persists.
He also pointed out that the Republican-controlled state legislature can meet at any time to strike down the Governor’s emergency orders.
WILL previously asked their case to be combined with Fabick v. Evers, but were denied by the supreme court.
Assistant Attorney General Hannah Jurss, representing the Evers administration, said that the Governor should be allowed to continue issuing emergency orders as necessary. She pointed out that, although the threat isn’t new, it is just as dangerous as ever.
Wisconsin blew past 300,000 positive coronavirus cases this weekend — that’s roughly equivalent to the combined populations of Madison, Monona and Fitchburg.
“If, let’s say, a foreign enemy declared war on the United States and Wisconsin was under threat of an attack in March and in September, I think we would all agree that emergency conditions exist in March and emergency conditions exist in September — even though those conditions are caused by the same enemy and the war may not have ended in the middle,” Jurss argued.
The case before the court bears a strong resemblance to the one that ultimately overturned Safer at Home in May. Both argue executive overreach by Evers, and that he extended an order past a state-imposed maximum length without going through legislative rulemaking.
But, since ruling against Evers’ Safer at Home order in May, the political balance of the court has shifted in Democrats’ favor. With the election of Jill Karofsky in April, the court tilted to four conservatives and three liberals.
Conservative justice Brian Hagedorn will be the likely swing vote in this case. He sided with the court’s democrats in May, voting to uphold the safer at home order. But, in today’s oral arguments, Hagedorn expressed skepticism over the Governor’s authority to extend emergency orders past the sixty day limit.
“This is an extraordinary grant of short-term power,” he said. “Nobody’s questioning the governor’s sincerity in trying to do what’s right here, but he can only do the power he’s been given to do.”
The court is expected to issue a decision on the case in the coming weeks.
Governor Evers’ mask mandate, meanwhile, is set to end this coming Saturday. But, with COVID-19 cases on a continual rise in Wisconsin, an extension is likely.
(Photo: Daderot / WikiMedia Commons)