MADISON, Wis. — The Wisconsin Supreme Court is set to release its ruling Wednesday on whether Gov. Evers violated state law and overextended his emergency powers by issuing multiple emergency orders during the COVID-19 pandemic.
Gov. Evers issued his first emergency order in March to help mitigate the spread of COVID-19 in Wisconsin and has issued several orders since, forming the basis for additional orders like the current mask mandate. State law allows a single state of emergency to continue for 60 days unless the legislature prolongs it; the main argument of the case is that because the pandemic has not changed, therefore multiple emergency orders related to the same emergency are invalid.
The Governor’s legal counsel has argued before the high court that the issue of whether he can declare an emergency order is the jurisdiction of the executive and legislative branches of government, not the judicial branch. Additionally, Gov. Evers argued that Wisconsin law allows him to issue separate emergency orders based on different and evolving emergencies stemming from the same underlying cause–in this case, the COVID-19 pandemic.
There’s two main questions the state supreme court must decide. First, justices must determine whether Gov. Evers violated the law by issuing multiple orders for the same pandemic. Additionally, the courts have a second question: whether the law itself should have given the power to the executive branch at all, rather than the legislature.
“The separation of powers is at stake here: did the legislature really overstep in the law itself by giving too much power?” UW-Madison political science professor David Canon explained. In terms of potentially limiting gubernatorial power, “that would have farther-reaching implications beyond this specific case.”
The court granted original jurisdiction to the case in October, meaning the lawsuit bypassed lower courts and began in the state’s highest court. Justices heard oral arguments for the case in mid-November; at the time, conservative-backed justice Brian Hagedorn–who has proved a swing vote in several recent cases, siding with liberal-backed judges in election lawsuits–seemed skeptical of the Governor’s interpretation of emergency authority. The court is narrowly controlled on a 4-3 margin by conservative justices.
Any ruling that impacts statewide orders like the mask mandate would not have any impact on orders issued by local public health officials, like those requiring masks and business capacity limits in counties like Dane.
Earlier this year, the Republican-controlled legislature voted to strike down the mask mandate and underlying emergency order; Evers promptly issued a new one. If the high court sides with the governor, it would be up to the legislature going forward to handle current or future orders.
Fabick v. Evers is brought by Jere Fabick, a businessman and Wisconsin Republican political donor who is also pursuing a case in the supreme court against the Wisconsin Elections Commission and other election officials in the wake of President Joe Biden’s victory in the state. He also brought a lawsuit to the supreme court in May against Andrea Palm and the Department of Health Services against the Safer at Home order, which was dismissed after the court ruled to overturn it in a separate case.
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