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Wisconsin’s Supreme Court is Reviewing the Governor’s COVID-19 Orders

— November 25, 2020

High court will decide whether Governor Tony Evers’ executive orders are unconstitutional.

The Wisconsin Supreme Court is considering whether Governor Tony Evers exceeded his authority by issuing a statewide mask mandate after the announcement of the original public health emergency had expired.  Evers has issued three public health emergencies and a series of related orders.  Lawsuits challenging the Governor’s actions have argued the circumstances which led to the first have not changed, so his actions are not legal, and they would like the decision rescinded.

The high court held virtual arguments, taking the case under advisement.  The court will determine whether the Governor’s decision violated the law by issuing orders lasting longer than 60 days and if the decision represents an abuse of power.  The Legislature can grant an extension past 60 days if it feels this is necessary.

“For the Governor to continue citing the COVID-19 and say ‘well, it’s still here, it’s still present so I can declare a state of emergency,’ no, you can’t,” Fernholz said.  “State law does not allow emergency powers to last indefinitely during a pandemic.”

Wisconsin's Supreme Court is Reviewing the Governor's COVID-19 Orders
Photo by Dean Sun on Unsplash

Assistant attorney general Hannah Jurss, said, “There is nothing that should limit the Governor’s ability to recognize that that new attack has occurred and issue a new state of emergency order.  Those bringing the lawsuit are interpreting executive order ability as a ‘one and done’ approach.”  He added, “Evers should be able to implement new orders as new emergency circumstances arise.”

Wisconsin itself has more than 312,000 confirmed COVID-19 cases and 2,637 deaths since the pandemic began in March.  There were 2,096 people hospitalized, according to the Wisconsin Hospital Association.

The case currently being considered was originally filed by Jere Fabick, a Republican donor who has given more than $350,000 to Republican or conservative candidates in Wisconsin between 1994 and the middle of 2020, according to the Wisconsin Democracy Campaign.  In 2016, Fabick gave $20,000 to conservative Wisconsin Supreme Court Justice Rebecca Bradley.

“There is no question that the pandemic has had a significant impact on the State of Wisconsin, or that COVID-19 has been an ongoing problem in Wisconsin since at least February 2020,” Fabick’s lawsuit states. “But the existence of a crisis does not give the government unlimited authority to act in violation of the law.”

An earlier lawsuit challenging the mask mandate was unsuccessful at the trial court level.  That case was filed on behalf of three plaintiffs by the Wisconsin Institute for Law and Liberty (WILL).  St. Croix County Judge Michael Waterman, a Republican, sided with the Governor’s actions, ruling there was “nothing in state law that prevented him from issuing multiple public health emergencies.”  The Supreme Court’s three liberal justices issued a dissent written by Justice Rebecca Dallet, saying, “Our original-action jurisdiction is not meant to allow a single, disgruntled taxpayer to jump the line to achieve a desired outcome.  Granting Fabick’s petition is the latest step in the majority’s efforts to transform this court from one of last resort to the first stop for any discontented Wisconsinite.”


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