Ruling on mask mandate was the right call
St. Croix County Circuit Court Judge R. Michael Waterman made the right call on Monday when he rejected a challenge to Gov. Tony Evers’ authority to issue a mask order.
Wisconsin Institute for Law and Liberty (WILL) on behalf of three Polk County men had filed a lawsuit challenging the governor’s authority to issue additional emergency declarations for the same general incident. Republicans in the legislature backed WILL’s lawsuit in a further attempt to undermine the power of the governor’s office.
State law gives the governor the authority to declare a state of emergency. This declaration is in effect for 60 days and gives the governor broad authority to issue orders relating to that emergency. The law is a balancing act, recognizing that when the flood waters are rising there is no time to have a debate over what kind of sandbags should be used to protect homes from flooding.
While the law gives the governor broad powers, they are far from absolute. At any time, the legislature can meet and by joint resolution with a simple majority end the governor’s emergency declaration or cancel any of the emergency orders. This puts the ultimate power in the hands of the people through their representatives in the legislature. Rather than using their constitutional power and voting to strike down or modify the mask mandate, GOP leaders decided to hire private attorneys at taxpayers’ expense to support WILL’s lawsuit in hopes of once again hiding behind judicial robes.
The real problem in Wisconsin isn’t that there is a power-hungry governor, but that there is an absentee legislature that has not shown up for work in more than six months.
Last spring the legislature hid behind the skirts of the State Supreme Court in the Palms case involving an extension to the Safer at Home order which had closed down non-essential businesses including taverns and hair salons in hopes of slowing the spread of COVID-19.
In early August, as COVID-19 numbers began to surge upward in the state, Evers issued a second emergency declaration and imposed the mask order. In September, the governor issued a third declaration which extended the mask order until Nov. 21.
“[I]f the legislature is unconvinced that a state of emergency does exist, the legislature has the ultimate power to terminate it,” stated Judge Waterman in his ruling rejecting an injunction against the governor’s order.
Wisconsin is currently the national hotspot for COVID-19 cases. The mask mandate and the additional orders calling for reduced occupancy in public buildings are reasonable and moderate steps to help bring the spread of the disease under control. No one enjoys wearing a mask or being limited in going out to their favorite restaurant or tavern. Likewise no one enjoys getting sick or seeing a loved one die due to a preventable illness.
Judge Waterman made the right call in not using an injunction to override the power of the governor to act in an emergency. If the legislature wants the mask order to go away, legislators will need to stand up and act and face the consequences of their action in the ballot box.