After the legislature failed to act against it, Governor Tony Evers’ statewide mask mandate is now facing a legal challenge in court.
The Wisconsin Institute for Law & Liberty (WILL) announced Tuesday it is suing to cancel the governor’s emergency order that provided the authority to issue the statewide mask mandate. The governor’s emergency order is the second order concerning the spread of the Covid-19 virus.
“This lawsuit is not about whether masks are good or bad, or whether Wisconsin ought to do more, or less, to address COVID-19. It isn’t even about whether the state should have a mask mandate,” said Rick Esenberg, President of WILL, in a statement Tuesday. “This lawsuit is about our system of government and the rule of law. Governor Evers cannot seize these time-limited emergency powers more than once without legislative approval.”
The lawsuit by WILL was filed in Polk County on behalf of three plaintiffs challenging Evers’ executive order declaring a state of emergency due to the Covid-19 virus.
In May, the Wisconsin Supreme Court ended Evers’ attempt to extend his first emergency order regarding the Covid-19 virus in a 4-3 decision, with conservative Justice Brian Hagedorn joining the two liberals in the dissent. Since then, conservative Justice Dan Kelly has been replaced by liberal Jill Karofsky. Karofsky defeated Kelly in the Spring Election.
Evers’ second 60-day emergency order regarding the Covid-19 virus and the statewide mask mandate took effect on July 30, the day Karofsky was sworn in.
Republican legislative leaders were quick to condemn the mask mandate at the time, and opponents of the mask mandate hoped the legislature would pass a joint resolution ending the second emergency order.
Senate Majority Leader Scott Fitzgerald (R-Juneau) promised the Senate had the votes to end the emergency order. However, Assembly Speaker Robin Vos (R-Rochester) issued a statement saying that there were “constitutional questions” about the order.
“I would expect legal challenges from citizen groups,” Vos said.
Rep. Adam Neylon (R-Pewaukee) conceded on August 9 Assembly Republicans didn’t have the votes to overturn the executive order.
Fox 6 News in Milwaukee reports the Evers Administration issued the following statement Tuesday through spokesman Britt Cudaback:
“Republicans and their allies have tried at every turn to prevent the governor from keeping Wisconsinites healthy and safe. From safer at home to the April election and now masks, they’ve filed more lawsuits than they have passed bills during this pandemic. We know requiring masks and face coverings will help us save lives, and Gov. Evers will continue listening to science and public health experts in making the best decisions for the people of our state.”
However, a recent analysis by Will Flanders, the research director for WILL, found that the statewide mask mandate may have had no impact on the spread of the Covid-19 virus.
“The bottom line is that Evers’ mandate, in addition to being unconstitutional, is ineffectual,” Flanders wrote.
Cudaback also attacked Republicans on the issue of the mask mandate, saying it was the real issue and not the constitutional question.
“Every single Republican member should be asked to answer on the record whether they support this lawsuit, which could strike down the governor’s mask order and ultimately put lives at stake,” Cudaback said. “Don’t buy WILL or Republican attempts to manufacture nuance where there isn’t any by saying this lawsuit isn’t about masks—Republicans either support keeping people healthy and safe based on the advice and guidance of public health experts and science or they don’t.”
But the conservative law firm disagreed strongly with that characterization in their statement announcing the lawsuit.
WILL’s lawsuit is very simple. Governor Evers cannot seize emergency powers more than once to address the same crisis. To interpret the law otherwise, would allow one-person rule by the Governor for what could be a virtually unlimited amount of time whenever the vague statutory definition of a “public health emergency” or “disaster” can be said to be present. The result would be the total breakdown of our constitutional order.
A recent Marquette University Law School poll found popular support for the statewide mask mandate. According to the poll, 69% agree that masks should be required in all public places, including 43% of Republicans, while 29% disagree. Support is highest among Democrats at 93%, with 71% of independents also supporting the mandate.
