Courts To Decide Governors’ Emergency Powers

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.

Democratic Gov. Tony Evers, who is 21 months into a four-year term, has issued 90, according to the Legislative Research Bureau (LRB).

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 pandemic’s surge in this state threatens to overwhelm Wisconsin’s health-care system and destabilize the economy, the governor added. In his latest executive order, Evers declared that the pandemic has caused a “state of emergency.”

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.

Last week, in a WisconsinEye interview, WILL President Rick Esenberg said his organization will seek an injunction that could block the new mask edict. Esenberg said he would prefer that the Legislature act, since it could simply void the governor’s mask order by convening and passing a joint resolution canceling it. But Vos has not responded to calls from GOP senators to convene the Assembly to pass that resolution.

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?

Steven Walters is a senior producer with the nonprofit public affairs channel WisconsinEye. Contact him at stevenscotwalters@gmail.com