The Wisconsin Supreme Court will hear oral arguments whether the state legislature can yield its power to the executive branch in the challenge to Governor Tony Evers’ Covid-19 emergency powers.
The Wisconsin Institute for Law & Liberty (WILL) has been granted time for oral arguments in the case of Fabick v. Evers, an original action before the state Supreme Court questioning whether Evers can issue multiple emergency orders for the same crisis, the continuing fight against the Covid-19 pandemic. According to WILL, the power to extend the emergency orders only belongs to the legislature.
“The separation of powers holds that one branch of government cannot give away its core powers to another,” said WILL President and General Counsel Rick Esenberg in a statement Monday. “We are pleased the Court has granted WILL oral argument time to make the case that the Legislature’s grant of authority on Governor Evers’s emergency declarations constitute an unconstitutional delegation of power.”
The state Supreme Court will hear oral arguments on November 16.
Since the start of the Covid-19 pandemic, Evers has issued three emergency orders that have been challenged in court.
The first order was the shut down of bars, restaurants and other “non-essential” businesses earlier this year. The Evers Administration’s attempt to extended that emergency order was shot down 5-4 in a state Supreme Court decision in a lawsuit brought by WILL. Since then, conservative Justice Dan Kelly was defeated in an election and replaced by liberal Justice Jill Karofsky.
The emergency order that authorized the statewide mask mandate is before the Wisconsin Supreme Court now in Fabick v. Evers. WILL had filed their own separate lawsuit, but their case was put on hold and they were invited to file an amicus brief in the Fabick case.
A third emergency order limiting occupancy for bars and restaurants to 25% was defeated at the Appeals Court level on Friday. The order, which also expired on Friday, was placed on hold by the Appeals Court in October pending the final outcome of the case.