A divided state Supreme Court Wednesday found the only statewide COVID-19 protection in place in Wisconsin — the mask mandate and underlying public health emergency declaration — is unlawful.
The long-anticipated ruling comes just days before Democratic Gov. Tony Evers' current face mask requirement is set to expire next week. It leaves the state without any virus restrictions as officials look to expand vaccination efforts and health experts have confirmed the emergence of a third COVID variant.
In the 4-3 ideologically-split decision, the court's conservative majority sided with Republicans who brought and supported the lawsuit, ruling it's not within a governor's power to issue successive public health emergency orders tied to the the same crisis without legislative approval.
"The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully," conservative Justice Brian Hagedorn wrote for the majority in the decision. "We conclude he did not."
This is the second time the court has nixed a directive from Evers tied to the COVID-19 crisis. The court previously struck down the state's stay-at-home order last May after the Republican-led Legislature issued a legal challenge against the measure. In that case, which came when conservatives controlled the court 5-2, Hagedorn sided with the liberal minority in dissenting.
Evers, who has issued mask mandates since the end of July, has repeatedly argued the pandemic has evolved over the last seven months, necessitating additional public health declarations. His current mask order cites the spread of the "new, more contagious strains of the virus" as part of the rationale for the requirement.
Liberal Justice Ann Walsh Bradley agreed in her dissent, which was joined by Justices Rebecca Dallet and Jill Karofsky, writing that while COVID "may be the underlying cause of the conditions that" spurred the public health orders, the "conditions that the pandemic caused" are what each is based on.
"It makes no sense to hamstring a governor's ability to meet the emergencies faced by the people of Wisconsin by limiting emergency power to only one underlying cause—regardless of whom is governor," she wrote.
During a press briefing on Tuesday, ahead of the decision's release, Evers said he hadn't at that time made a decision about extending the mask mandate past Monday, when it was originally set to expire prior to the court striking it down.
"If indeed (we're) at some level where we're struggling with a Supreme Court decision as we have in the past, I will certainly be encouraging people across the state, as will our local public health officers, to make sure that people understand how important it is to keep on keeping on as it refers to wearing a mask," he said.
Republican lawmakers have for months targeted Evers' mask mandate and public health order as they waited for a decision from the court, which heard oral arguments in the case in November. The Legislature in early February voted to end the mask mandate, but Evers quickly issued a new one that same day.
The court's conservative majority, which addressed that order as well in its ruling, concluded Evers isn't able to "simply reissue an emergency declaration revoked by the Legislature," as Haegdorn wrote that doing so would instead "encourage a game of whac-a-mole between the governor and Legislature."
"The statute gives the legislature the power to override a governor's declaration of emergency, not the other way around," he wrote.
Under state law, the Legislature has the power to revoke or extend an emergency order through a joint resolution passed by both chambers. Such orders are in effect for 60 days unless lawmakers act.
Senate Majority Leader Devin LeMahieu applauded the court's decision in a statement, saying the decision "upholds the separation of powers and the rule of law."
"Today’s ruling vindicates the Legislature as a co-equal branch of government and will expand freedom and opportunity for the people of Wisconsin," the Oostburg Republican added.
Despite the striking down of the statewide order, local directives including Public Health Madison & Dane County's current mask mandate, part of its 14th Emergency Order, are untouched by the move.
"Dane County's mask mandate remains in place despite today's Supreme Court decision," Executive Joe Parisi wrote in a tweet.