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Legislative Update

State Supreme Court Hears Challenge To Evers’ Face Coverings Order, Emergency Powers

by | Nov 16, 2020 | Legislative Update Blog, State Issue | 0 comments

Slightly over six months after it struck down Wisconsin’s “Safer at Home” order on a 4-3 decision, the Wisconsin Supreme Court heard arguments today (11/16) in another challenge to Gov. Tony Evers’ and his administration’s use of state “emergency power” statutes to curb the spread of COVID-19. 

The case argues Gov. Evers exceeded his authority when he issued multiple emergency orders in response to the COVID-19 pandemic.

The case heard today specifically challenges the emergency orders Evers issued on July 30 and later reissued on September 22 to impose a statewide face coverings mandate. Under those orders, individuals 5 years old and older must wear face coverings in indoor or “enclosed” public places when people who don’t live in the same household with them are present. The orders provide exemptions for certain activities, such as eating, drinking and swimming.

Evers issued the challenged face coverings orders under a state statute that authorizes governors to issue emergency orders in Wisconsin lasting for up to 60 days. That same statute allows the Legislature to rescind, modify or grant extensions to emergency orders issued by the governor. Another portion of that statute upon which the governor appears to be relying, allows a governor to “issue such orders as he or she deems necessary for the security of persons and property.” 

(Note: In issuing the face coverings orders, the governor cited as authority a different section of the statutes than the statutory section on which the now invalidated “Safer at Home” order relied upon.)

At issue in the current case is whether a governor has the power to issue multiple, successive emergency orders for what is arguably the same emergency—in this case, the COVID-19 pandemic—without the Legislature voting to extend or authorize them.

Attorneys representing the governor argued the governor may issue multiple emergency declarations because the COVID-19 pandemic has become increasingly more severe over time.  They also argued that the law includes safeguards—i.e., state lawmakers may revoke an emergency declaration if they choose—however, legislative leaders have chosen not to take that step.

Attorneys challenging the governor’s use of the emergency orders argued that the pandemic is a single emergency and not a new emergency or a new public health emergency that would justify the issuance of an additional order or orders without legislative authorization.

While the case involves significant questions about the balance of power in state government, it comes at the same time COVID-19 cases in Wisconsin are at their highest level since the pandemic began.  It also comes as the current version of the face coverings order is set to expire on Saturday (Nov. 21).

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