Dan O’Donnell breaks down what’s really at stake as the Wisconsin Senate passes a resolution to end Governor Evers’ public health emergency.
January 27, 2021
Perspective by Dan O’Donnell
This is not about masks. If you take nothing else away from this column, please remember this: It’s not about masks, and it never was.
Oh sure, Governor Evers’ statewide mask mandate was front and center of the Wisconsin Senate’s debate Tuesday, with Democrats each racing to the most hysterical, tortured analogy they could find.
Senator Tim Carpenter compared those who refuse to wear masks to drunk drivers. Senator Chris Larson got off on a tangent and likened the reopening of schools to shoving children in a burning building. And Senator Janet Bewley missed the point altogether by claiming that the issue at hand was not, in fact, constitutional governance and the separation of powers.
“It’s a conversation for another day,” she said. “Not today.”
Actually, it was the conversation on Tuesday (even if Democrats didn’t realize it), since the Governor’s unlawful, unconstitutional, and seemingly unending public health emergencies represent an untenable seizure of legislative authority never contemplated by either the Wisconsin Constitution or state statutes.
Wisconsin Statute § 323.10 provides that “if the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state.” This state of emergency, however, “shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”
In an obvious effort to get around this requirement of a joint resolution, Governor Evers has not once extended the public health emergency he first issued on March 12th. Instead, he tried to extend his “Safer at Home” lockdown without ever extending his state of emergency but was blocked by the Wisconsin Supreme Court.
When Democrats across the country suddenly began advocating for mandatory mask-wearing in July (after months of downplaying the need for it), Governor Evers issued a new public health emergency on July 30th solely so he could implement a statewide mask mandate.
Rather than try to extend this second emergency through a joint resolution of the Legislature, he issued a new public health emergency on September 22nd. Rather than seek a joint resolution to extend that one, he issued a fourth public health emergency on November 20th. When that one was about to expire, he again eschewed the legally required joint resolution and issued a fifth new public health emergency on January 19th.
In all, Wisconsin has as of this writing spent 248 of the past 321 days in a public health emergency. This is 188 days (or about 6½ months) longer than the plain language and clear intent of Wis. Stat. § 323.10 allows.
There is no reason for Evers to issue new public health emergencies every 61 days except to circumvent the requirement of a joint resolution, and the Senate is thus right to finally put an end to the lawless usurpation of legislative authority by the executive branch of state government.
Wisconsin Statute § 323.12 grants the Governor extraordinary power during an emergency that is normally delegated to the Legislature. He can “issue such orders as he or she deems necessary for the security of persons and property.” He can “suspend the provisions of any administrative rule” if he determines that it would get in the way of his emergency response. And, most alarmingly, he can “take, use, and destroy, in the name of the state, private property for emergency management purposes.”
Normally, of course, all of these actions would require legislative approval, and this is why a state of emergency can only be extended by a joint resolution of the State Legislature. It needs to sign off on such a dramatic and potentially dangerous usurpation of its constitutional authority to write all laws and provide legislative review of all administrative rules.
Neither Governor Evers nor any other Governor may simply snap his fingers and pretend that a new emergency exists every 61 days so that he can continue to infringe on the Legislature’s authority without the Legislature ever consenting to it.
Even those Democrats who truly believe that Wisconsin is in an ongoing state of emergency over the COVID-19 outbreak must acknowledge it has been one long emergency, not five different ones that necessitated five different emergency declarations. The proper, constitutional, and lawful course of action would have thus been for Evers to allow the Legislature to either extend his original emergency in June or accept that it would end after 60 days.
Since he did not—since he instead attempted to seize legislative power for nearly a full calendar year—the Senate was not only justified in voting to end his never-ending emergency; it was constitutionally compelled to do so.
Now the Assembly must follow suit; not because of its feelings on masks, but because it too has a duty to the Wisconsin Constitution, state law, and the people themselves to stand up against what can only be described as a form of gubernatorial tyranny.
Masks are not the issue and they never were. This is, has always been, and always will be about the far more important return to lawful, constitutional governance.