Today, Wisconsin Democratic Governor Tony Evers’ statewide mask mandate was declared unlawful by the State Supreme Court, marking a win for conservatives and constitutionalists.
The 4-3 conservative majority held that Evers’ unilateral mask mandate usurped powers of the state legislature and went beyond emergency powers of the governor.
Justice Brian Hagedorn delivered the majority opinion, writing: “The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not.”
Because Wisconsin statute declares that a state of emergency can last no longer than 60 days without being extended by a joint resolution of the legislature, the original unilateral mandate by the governor was unlawful after the first 60 days.
The petitioner, Jere Fabick, asked the Court to declare the second and third state of emergencies unlawful, issued by executive order in July and September.
Though the Court’s liberal justices believe that the extenuating circumstances of the pandemic allow for extended emergency powers, the conservatives found the petitioner’s argument more persuasive.
In a concurring opinion, Justice Rebecca Grassl Bradley wrote that “any exercise of executive power in the name of the COVID-19 pandemic” past the governor-issued first state of emergency “is unlawful unless the people consent, through their elected representatives in the legislature.”
Governor Evers’ interpretation of the statute “as a license to unilaterally decree consecutive states of
emergency based upon the same underlying cause,” Justice Bradley continued, “would violate the
structural separation of powers embedded in the Wisconsin Constitution.”
Justice Ann Walsh Bradley wrote the dissenting opinion, citing the pandemic as a license for the governor’s extended executive action.
She wrote, “We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country.”
In her opinion, she states that the “ultimate consequence” of the majority’s conclusion is that “it places yet another roadblock to an effective governmental response to COVID-19.”
The restriction on the governor’s power to impose unilateral mask mandates on the state is not only a win for Wisconsinites who are tired of masking but constitutionalists looking to uphold state statute and legislative powers.