The News: Governor Tony Evers’s announcement Tuesday that he has declared another statewide emergency declaration to respond to COVID-19, his third declaration this year in response to the same pandemic, is a clear violation of state law. Wisconsin law forbids a governor from unilaterally extending a public health emergency beyond 60 days or skirting the law by declaring multiple 60-day emergencies for the same crisis. WILL is currently suing Governor Evers in Polk County Circuit Court over the July 30, emergency declaration.
The Quote: WILL President and General Counsel Rick Esenberg said, “Governor Evers and his team believe the presence of COVID-19 supersedes the rule of law and our state constitution. They are wrong. Letting this gross abuse of power stand is not an option.”
Background: On May 12, 2020, Wisconsin Governor Tony Evers’s first 60-day public health emergency, declared in relation to the sudden arrival of COVID-19, ended. The legislature had the option to extend the emergency and the expanded executive powers that accompany a state of emergency but declined to take any action.
The end of the emergency heralded the return of our regular constitutional order. The legislature has the responsibility of crafting and passing legislation and the executive branch has the option to sign or veto legislation. Any further statewide responses to COVID-19 ought to have proceeded through this regular process.
But Governor Evers declared a second public health emergency, Executive Order #82, on July 30, seizing emergency powers for a second 60-day period to address the ongoing COVID-19 pandemic. Accompanying the new emergency declaration was a mask mandate applying to all 72 counties.
WILL filed a lawsuit in Polk County Circuit Court, on behalf of three Wisconsin residents and taxpayers, on August 25. The lawsuit challenges the ability of Governor Evers to seize emergency powers more than once to address the same crisis.
The declaration of a third COVID-19 emergency – in effect a continuation of the earlier emergencies – by Governor Evers represents a gross abuse of power. 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.