Courts To Decide Governors’ Emergency Powers
Republicans oppose Evers’ mask mandate, want courts to restrict longtime power of governors.
Wisconsin’s last five governors issued 1,223 executive orders. Most of them called special elections, mourned the deaths of heroes or the famous, warned of fuel shortages or dangerous weather conditions or created special commissions to study emerging problems – the October 1987 order creating the HIV Infectious Advisory Committee, for example.
Republican Gov. Tommy Thompson (1987-2001) issued the most, 417; Democratic Gov. Jim Doyle (2003-10), issued 337; Republican Scott Walker (2011-18), 319; and Republican Gov. Scott McCallum (2001-02), 60.
An LRB memo summarizing the increasing use of executive orders —Democratic Gov. Tony Earl (1982-86) only issued 119, for example — summarized them this way: “The executive order is an important tool used by governors to carry out their constitutional and statutory duties.
While most executive orders honor the lives and public service of Wisconsin residents or pay tribute to the military service of Wisconsin armed forces personnel who have died in combat, some have far-reaching administrative and public policy importance.”
The back-to-back executive orders issued by Evers require face masks to be worn statewide, when Wisconsin residents are inside “enclosed areas” or buildings that are not their homes, in order to slow the COVID-19 pandemic, and are shaping up as a historical showdown involving all three branches of state government.
Last week, Evers — head of the executive branch — issued a second face mask order, which he said will run through Nov. 21. In a statement the governor said: “Wisconsin is now experiencing unprecedented, near-exponential growth of the COVID-19 pandemic with the daily number of new cases rising from 678 on Aug. 31 to 1,791 on Sept. 21, a 2.6-fold increase in three weeks, driven in part by the unprecedented number of infections among 18-24 year-olds.”
Twice recently, Wisconsin set daily records for the number of positive COVID-19 tests, according to the state Department of Health Services (DHS). And eight Wisconsin cities landed on a national list of 20 cities with the fastest-growing number of cases.
The LRB memo says state law “permits the governor to declare a state of emergency by executive order.” Emergency declarations were issued this summer after protests and violence in Kenosha and Madison and after anti-Vietnam War protests in Madison in the late-1960s and ’70s.
“In these and other statutes, the state Legislature requires or affirms that the governor may engage in an action through executive order,” LRB added. “In this respect, the executive order is acknowledged as one of the legal means the Legislature recognizes for the governor to carry out a duty imposed by law.”
But the face mask edict has triggered the most backlash ever from Republicans who control the Legislature.
“Gov. Evers’ order is moot, illegal, invalid, and almost assuredly headed for litigation,” said Senate Majority Leader Scott Fitzgerald.
“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,” added Assembly Speaker Robin Vos.
In August, the Wisconsin Institute for Law & Liberty (WILL), a nonprofit conservative law firm, sued Evers in Polk County District Court, asking that the first mask order be thrown out. The suit alleged that state law forbids a governor from unilaterally extending a public health emergency beyond 60 days or by declaring multiple emergencies in response to the same crisis.
The fight seems destined for the State Supreme Court, the judicial branch of state government. In May, the Supreme Court ruled that Evers, by another executive order, had illegally ordered the DHS secretary to issue a stay-at-home order to try and control the pandemic.
But the issue is different in the Polk County suit: What exact authority do governors have to deal with emergencies by executive order?
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- WILL Asks Judge to Decide on Merits in Lawsuit Challenging Gov. Evers’s Emergency Declarations - Wisconsin Institute for Law & Liberty - Oct 23rd, 2020
- Mask Mandate Targeted by Another Conservative Lawsuit - Shawn Johnson - Oct 16th, 2020
- Data Wonk: How Republicans Screwed Themselves - Bruce Thompson - Oct 14th, 2020
- WILL Pledges Appeal in Lawsuit Challenging Governor Evers’s Emergency Declarations - Wisconsin Institute for Law & Liberty - Oct 12th, 2020
- Court Upholds Evers Mask Mandate - Shawn Johnson - Oct 12th, 2020
- Gov. Evers Releases Statement Regarding Circuit Court Decision Leaving Public Health Emergency Intact - Gov. Tony Evers - Oct 12th, 2020
- Why Should Court End Mask Mandate, Judge Asks - Shawn Johnson - Oct 5th, 2020
- Murphy”s Law: Is Robin Vos Scared of Voters? - Bruce Murphy - Sep 29th, 2020
- Lawsuit Seeks End to State Mask Order - Erik Gunn - Sep 29th, 2020
- WILL Files Motion for Immediate Injunction in Lawsuit Challenging Governor Evers’s Emergency Declaration - Wisconsin Institute for Law & Liberty - Sep 28th, 2020
Read more about Statewide Mask Mandate here