Why Should Court End Mask Mandate, Judge Asks
Legislature has power to end Evers mandate, he notes, why should court usurp that right?
A judge hearing the lawsuit over Wisconsin’s statewide mask mandate repeatedly asked a lawyer for conservatives at a Monday hearing why he should block the mandate when the Legislature has decided not to.
“They could do it tomorrow if they wanted to,” said St. Croix County Judge Michael Waterman.
The lawsuit, which was brought by the conservative Wisconsin Institute for Law and Liberty (WILL) on behalf of three Wisconsin residents, argues that Democratic Gov. Tony Evers overstepped his authority when he issued and later extended a statewide mask mandate this year.
Evers has used the powers to declare three public health emergencies this year. The first came on March 12, at the beginning of the COVID-19 pandemic. The second, on July 30, led to the first mask mandate and came as COVID-19 cases were beginning to climb. And the third, on Sept. 22, extended the mask mandate as COVID-19 cases were surging on University of Wisconsin campuses.
WILL argued that because a governor’s public health emergency declaration “shall not exceed 60 days” unless it’s extended by the Legislature, Evers’ second and third public health declarations were invalid, and the court should strike them down.
“The pandemic that we had in July and September is the same one we had in March,” said WILL attorney Anthony LoCoco. “It’s the same essential public health problem: The spread of a novel virus.”
LoCoco said that for many people, wearing a mask may seem simple, smart and courteous, and they may not care that the government had ordered them to wear masks.
“But my clients do care,” LoCoco said. “They are aggrieved by this invasion of their liberty.”
But just as state lawmakers have the power to extend a governor’s emergency, they also have the power to revoke it.
“They’re asking the third branch of government — the judiciary — to step in and exercise a power that the Legislature reserved to itself,” said Judge Waterman. “The court is being asked to do that when the Legislature has apparently chosen for one reason or another not to act.”
Evers’ attorney, Assistant Attorney General Colin Hector, stressed that the nature of the COVID-19 pandemic now was worsening, making this a different emergency than the ones the state had dealt with at other points this year.
“The data here is screaming out that unfortunately, Wisconsin right now is in a very different and much worse situation than it has been,” Hector said.
Wisconsin’s recent COVID-19 numbers have been among the worst in the nation with a seven-day average of nearly 2,400 positive daily cases. In mid-May, that number was less than 300. The number of people hospitalized for COVID-19 also hit an all-time high of 782 Monday.
Hector also stressed that the law Evers used to declare an emergency gave the Legislature the express power to end it.
“They have to take a political act,” Hector said. “It can’t possibly be the case that they can have the courts make that decision for them.”
Democrats have argued that Republicans won’t vote to rescind the mask mandate because it’s popular. In early August, 69 percent of registered voters surveyed by Marquette University favored a mask mandate compared to 29 percent who opposed it.
While the case is in his courtroom for now, the Wisconsin Supreme Court will likely have the final say on the mask mandate and the governor’s powers. What happens there is not yet clear.
While the court struck down “Safer at Home” in May, it had a 5-2 conservative majority at the time, a margin that has since been trimmed to 4-3.
That would put the focus squarely on conservative Justice Brian Hagedorn, who joined the court’s liberals in siding with the Evers administration earlier this year.
Judge Questions Need For Court To Rule On Mask Mandate was originally published by Wisconsin Public Radio.
More about the Coronavirus Pandemic
- Milwaukee County Announces New Policies Related to COVID-19 Pandemic - County Executive David Crowley - May 9th, 2023
- DHS Details End of Emergency COVID-19 Response - Wisconsin Department of Health Services - Apr 26th, 2023
- Milwaukee Health Department Announces Upcoming Changes to COVID-19 Services - City of Milwaukee Health Department - Mar 17th, 2023
- Fitzgerald Applauds Passage of COVID-19 Origin Act - U.S. Rep Scott Fitzgerald - Mar 10th, 2023
- DHS Expands Free COVID-19 Testing Program - Wisconsin Department of Health Services - Feb 10th, 2023
- MKE County: COVID-19 Hospitalizations Rising - Graham Kilmer - Jan 16th, 2023
- Not Enough Getting Bivalent Booster Shots, State Health Officials Warn - Gaby Vinick - Dec 26th, 2022
- Nearly All Wisconsinites Age 6 Months and Older Now Eligible for Updated COVID-19 Vaccine - Wisconsin Department of Health Services - Dec 15th, 2022
- City of Milwaukee Bi-Weekly COVID-19 Update - City of Milwaukee Health Department - Dec 9th, 2022
- MKE County: COVID-19 Disease Burden Remains Stable - Graham Kilmer - Nov 25th, 2022
Read more about Coronavirus Pandemic here
More about the Statewide Mask Mandate
- Court Watch: Why Court Voided Evers Emergency Order - Gretchen Schuldt - Apr 5th, 2021
- Statement by Heartland Institute Director Jeré Fabick on WI Supreme Court Victory Against Gov. Tony Evers - Heartland Institute - Mar 31st, 2021
- Senator Agard: Statement on Supreme Court Decision - State Sen. Melissa Agard, Senate Democratic Leader - Mar 31st, 2021
- Wisconsin’s Hyperpartisan Supreme Court is Endangering the Public - Democratic Party of Wisconsin - Mar 31st, 2021
- Wisconsin Supreme Court: Gov. Evers’ Multiple Emergency Declarations Violate Law - Wisconsin Institute for Law & Liberty - Mar 31st, 2021
- Rep. Hesselbein Statement on Supreme Court Ruling on Emergency Orders - State Rep. Dianne Hesselbein - Mar 31st, 2021
- Statement on Wisconsin Supreme Court Decision - State Sen. Jon Erpenbach - Mar 31st, 2021
- Gov. Evers Releases Statement Regarding Supreme Court Decision - Gov. Tony Evers - Mar 31st, 2021
- Rep. Hintz: Statement on Wisconsin Supreme Court Ruling - State Rep. Gordon Hintz - Mar 31st, 2021
- State Supreme Court Overrules Evers’ Emergency Powers - Laurel White - Mar 31st, 2021
Read more about Statewide Mask Mandate here
4 thoughts on “Why Should Court End Mask Mandate, Judge Asks”
Conservatives are always comparing about activist judges who set public policy. Republicans who control the legislature choose not to meet to deal with this issue. So WILL is taking this case to court to look for an activist judge who will do what the Republican legislature chose not to do. This judge makes a very good point.
Obviously Scott Fitzgerald and Robin Vos, along with the other Republicans do not want to be held accountable. This is beyond being petty. Clearly they are ignoring the majority of the voters just as they are ignoring the majority of voters who want an end to gerrymandering. Again, they are no longer accountable to the voters, neither Democrat or Republican. Through gerrymandering they have effectively carved out the state in their favor so that they are only accountable to themselves. So, they won’t have to take responsibility for their irresponsible actions regarding wearing masks and they continue to offer nothing as an alternative while continuing to blame Gov. Evers and Democrats.
RE: Douglas Johnson : and yet the fools of this state continue to vote them into office.
I would not characterize all voters as ‘fools who continue to vote them into office’. Gerrymandering, by Republicans, has effectively carved their districts to minimize any democratic challenge. In effect no Democrat challenger will run in a mostly heavily gerrymandered Republican district because in most circumstances the odds of winning are stacked against them and given the cost of campaigns are extraordinarily huge. So, in essence we have a legislature that is stacked against Democrats and will remain so until an end to gerrymandering. It has been estimated that it would take a 57-58% turnout for Democrats above Republican turnout in order to flip a district. In counties such as Waukesha, Washington, Walworth, and others it may not be impossible, but at this time it is next to impossible. Currently the Republican legislature likes the ‘status quo’ in their favor while ignoring the majority of voters who want a change. The ‘fools’ you refer to may not fully understand the negative impact that gerrymandering has had on our state politics.