Thus endeth Tony Evers’ end run around the Wisconsin statute and the state constitution. In a narrow 4-3 decision, the state supreme court ended Evers’ efforts to keep issuing emergency declarations in order to maintain control of COVID-19 policies and enforcement. That means the state’s mask mandate will end immediately, unless Evers can convince the legislature to take it back up:
The Wisconsin Supreme Court on Wednesday struck down Gov. Tony Evers’ statewide mask mandate, ruling that the Democrat exceeded his authority by unilaterally extending the mandate for months through multiple emergency orders.
The 4-3 ruling from the conservative-controlled court is the latest legal blow to attempts by Evers to control the coronavirus. It comes after Republicans in the Legislature voted to repeal the mask mandate in February, only to see Evers quickly re-issue it.
The court last May struck down Evers’ “safer at home” order, saying that his health secretary did not have the authority for such an order. Evers’ attempts to limit capacity in bars, restaurants and other indoor places were also blocked by a state appeals court in October.
In the latest case, the court ruled that any public health emergency issued by Evers is valid for just 60 days and can’t be extended without legislative approval.
Jason Calvi highlights the reasoning behind this decision. The statute grants governors 60 days of authority to issue and enforce rules in an emergency, not an unlimited amount of time. The court saw Evers’ attempt to keep issuing emergency declarations rather than work with the legislature as an obvious abuse of that power, and a contradiction to the explicit limit in statute on those powers:
"Such unilateral, unchecked power was anathema to the framers of our constitution," Justice Rebecca Bradley writes in concurrence against Gov. Evers' multiple 60-day health emergencies. pic.twitter.com/ptM3H0PDh3
— Jason Calvi (@JasonCalvi) March 31, 2021
This appears obvious enough to ask what the other three justices were thinking in voting to allow this unilateral extension of power by the governor. Justice Ann Walsh Bradley thinks the circumstances should allow for it:
“This is no run-of-the-mill case,” 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. And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision. Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19.”
That would mean that there were no functional limits on singular executive rule in Wisconsin, except elections. And even then, those emergency powers could be used to postpone or cancel elections, especially in a pandemic. Many wondered why Evers didn’t postpone or cancel the primaries a year ago, in fact, given the transmission risks of COVID-19. Both the statute and the structure of co-equal branches in the state constitution (as well as in the US Constitution) are designed to prevent exactly that kind of dictatorial authority from arising longer than absolutely necessary.
The real issue here isn’t the “emergency,” which has gone on for over a year now. It’s the inability of Evers to work with the legislature to govern the state of Wisconsin in a constitutional and legal manner. Until the courts end Evers’ end runs, no one will be forced to deal responsibly with this now-chronic public issue.
Wisconsin is far from the only state facing this problem. We also have it in Minnesota, albeit with somewhat less bitterness, and Michigan has had a similar conflict ongoing for a while. At some point, state courts will have to step up to remind governors that no one elected them Dictator. Kudos to the Wisconsin supreme court for reminding Evers of the importance and necessity of small-R republican institutions of self-governance.
Now Evers has to do the hard work of governing by engaging the legislature in policymaking. Let’s see if he has it in him.
Update: People might respond to that last paragraph by claiming that the legislature will refuse to cooperate with Evers. Don’t forget, though, that the mandate repeal was essentially a protest against Evers’ continued abuse of emergency powers. Now that they actually have room to legislate in this public-health crisis and will be accountable for their decisions, the legislature might be more cooperative as a partner.