MADISON, Wis. — Justices on the Wisconsin Supreme Court heard the debate over how the governor should handle emergency orders during the coronavirus pandemic on Monday.
A ruling in the case by Friday could overturn the statewide mask mandate, though justices are not required to hit that deadline.
Justices will try to answer the question at the heart of this case: Does the governor have the authority to issue multiple emergency declarations for an ongoing threat?
By Wisconsin law the governor can declare a state of emergency for 60 days. After that point, they are to get it approved by the legislature to extend it. The legislature could also meet at any time to revoke it.
The lawyer for the man who brought the suit said that Gov. Tony Evers should have worked with the legislature on this since each declaration he has made has been in response to the same thing – the coronavirus.
“The virus grows, the test results will ebb and flow, that doesn’t mean it changes into a new public health emergency if the underlying cause remains COVID-19,” said Matthew Fernholz, the attorney for Jere Fabick, who brought the lawsuit.
Evers’ attorney, Assistant Attorney General Hannah Schieber Jurss, said while the cause for the orders was the same, the circumstances were different.
Preceding the September emergency declaration “our numbers skyrocketed, driven for the first time by 18-24 year olds,” Schieber Jurss said. “And Gov. Evers issued Executive Order 90 to those emergency circumstances, not to a stagnant or static COVID-19 pandemic.”
It’s too soon to say if the court will decide along the lines of its ruling in May that tossed the stay-at-home order. Though the person who brought the suit is the same the arguments and circumstances are different, as is the makeup of the court (then-Justice Daniel Kelly is out, replaced by Justice Jill Karofsky). Justice Brian Hagedorn – who broke with conservatives in May – did not give clear indication in Monday’s arguments which way he’s leaning.
The order is set to expire after Friday, but justices don’t have to give their decision by then.
They are considering not just the facts of right now, but the greater implications of this ruling on future governors in future emergencies too.
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