The Wisconsin Supreme Court’s emerging swing justice appeared likely to strike down Gov. Tony Evers’ remaining COVID-19 restrictions during a hearing Monday on a lawsuit seeking to eliminate several statewide orders, including a public mask mandate.
The case before the court, like others filed against the Evers administration’s public health orders, contends the governor’s actions in recent months to mitigate the spread of the virus are an unconstitutional overreach of power.
If the governor’s public health emergencies and related orders are struck down, it will be up to local governments or laws passed by the Legislature to deal with the ongoing COVID-19 crisis.
The case comes as newly elected Justice Jill Karofsky, backed by liberals, has joined the court, shrinking the court’s conservative majority to 4-3. With the change in the court’s makeup, Justice Brian Hagedorn has, in a number of cases, acted as a swing vote deciding whether the court’s more conservative or liberal blocs control the outcome.
During oral arguments Monday, Hagedorn, backed by conservatives, appeared skeptical of the governor’s long-term ability to issue executive orders addressing the COVID-19 pandemic without the Legislature’s participation.
“To me, I don’t know how you read the statute and don’t acknowledge that the emergency conditions can exist, but the governor’s power to act via state of emergency, which is a fairly broad grant of emergency power — rolling back administrative rules … doing whatever is reasonable and necessary to secure persons or property — those are broad, extraordinary powers that it seems like the Legislature only wanted to allow for a very short period of time,” Hagedorn said.
Since the start of the outbreak, Evers has issued three public health emergencies and a series of related orders. The lawsuit the court heard Monday asks the court to strike down two of the governor’s most recent executive orders, which could affect not only the state’s face mask requirement but a future governor’s ability to address emergency situations without buy-in from the Legislature.
Evers issued the mask mandate in July. He extended it in September and the order is currently set to expire on Saturday, although Evers could extend it.
The case also challenges the governor’s limits on public gatherings and capacity restrictions in bars, restaurants and stores. However, those limits are no longer in effect after an appeals court put them on hold. The Supreme Court declined to take up the case, so there are no statewide capacity limits but there may be local restrictions in place.
The case being heard Monday was brought by Jere Fabick, a major Republican donor in Wisconsin 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. Fabick is a board member and policy adviser for The Heartland Institute, a free-market think tank and also the president of a multi-state Caterpillar equipment and engine dealer.
Bradley has not recused herself from the case.
At the heart of the case, Fabick contends that Evers’ second and third state of emergency declarations and the related emergency orders go beyond the governor’s short-term emergency authority.
Wisconsin law limits public health emergencies to 60 days, although the Legislature can extend them. Evers has issued new health emergencies, reasoning that the challenges caused by the pandemic have changed since March.
Plaintiffs, however, contend that because the circumstance necessitating the public health emergencies — the COVID-19 pandemic — remains the same, Evers has impermissibly extended the state of emergency well beyond the 60 days permitted by the law.
Karofsky and the court’s other liberal-backed members, Justices Ann Walsh Bradley and Rebecca Dallet, focused questions on whether the COVID-19 pandemic is a static or fluctuating emergency. They appeared to support the governor’s actions to address the pandemic, while Justice Rebecca Bradley, backed by conservatives, asked questions critical of the governor’s emergency powers.
The Associated Press contributed to this report.
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