Wisconsin Supreme Court rules governor exceeded authority with mask mandate, emergency orders

The Wisconsin Supreme Court ruled on Wednesday that Gov. Tony Evers (D) exceeded his authority with some of his COVID-19 emergency orders, including instituting a statewide mask mandate.

The state Supreme Court issued a 4-3 decision against two of Evers’s executive orders issued last year that extended the public health emergency beyond its original 60-day limit.

The majority opinion, written by Justice Brian Hagedorn, cited state law that requires the governor to receive legislative approval to lengthen any public health emergency, including the mask mandate. 

“The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully,” the ruling said. “We conclude he did not.”

Evers initially declared a public health emergency over COVID-19 in March 2020, followed by two more orders in July and September extending the emergency and implementing a mask mandate. But the court ruled against those last two orders.

“The statute contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat,” it said. “Pursuant to this straightforward statutory language, the governor may not deploy his emergency powers by issuing new states of emergency for the same statutory occurrence.”

Evers released a statement in response, saying, “Our fight against COVID-19 isn’t over.” 

“While we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic,” he said.

The governor also tweeted shortly after the decision:

The governor has asserted that the changing dynamics of the COVID-19 pandemic allow him to issue several public health emergencies to keep the state’s residents safe. 

Evers and Republicans in the state have feuded over the governor’s powers during the pandemic, including another case that reached the Wisconsin Supreme Court last May where the justices ruled against his “safer at home” order. A state appeals court also determined regulations against indoor dining could not be implemented. 

Last month, Wisconsin’s Republican-led State Assembly ordered Evers’s mask mandate and public health emergency to be repealed. Just over an hour later, the governor installed a new emergency order and mandate, pointing to the concerns about the more contagious coronavirus variant first discovered in the U.K.

Wisconsin Senate Majority Leader Devin LeMahieu (R) celebrated the state Supreme Court’s Wednesday decision, saying it ended “this constitutional crisis.”

“The decision upholds the separation of powers & the rule of law — core principles of our state and nation,” he wrote. “The Governor’s repeated abuse of emergency powers and pervasive violation of law had to be stopped.”

The Wisconsin Supreme Court’s decision stemmed from a case filed by businessman and Republican donor Jere Fabick, who argued Evers could only issue one state emergency per a “particular illness or pandemic,” according to ABC affiliate WBAY.

—Updated at 1:19 p.m.

Tags Coronavirus coronavirus executive orders COVID-19 Executive power mask mandate Masks Pandemic public health emergencies Public health emergency Separation of powers Tony Evers Wisconsin Wisconsin Supreme Court

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