What you need to know about the Senate’s proposed joint resolution

On Tuesday, Republicans in the Wisconsin State Senate will bring a resolution to the floor to terminate Governor Tony Evers’ recently declared public health emergency, colloquially known as the mask mandate. The senate is scheduled to take up the resolution on Tuesday. If it passes, its ultimate fate will be determined by the state Assembly. Here is what you need to know about the senate’s joint resolution and the governor’s executive order.  

Background

After the Wisconsin Supreme Court dismantled much of Evers’ stay-at-home order in May of 2020 (Legislature v. Palm), Evers initially believed he had lacked the sole authority to issue more statewide mandates. That belief changed.    

On July 30, 2020, Evers declared a new public health emergency, using it as a legal springboard for a statewide mask mandate. This was eventually challenged in Fabick v. Evers by concerned citizens who didn’t believe the governor had legal authority to issue “multiple and successive” executive orders pertaining to the same pandemic. Although the state legislature wasn’t the plaintiff in the lawsuit, they signed on in support with an amicus brief. Fabick v. Evers is currently pending before the Wisconsin Supreme Court.  

Lawful Authority

According to Senate Joint Resolution 3, Evers’ executive order last week violated Wisconsin statute 323.10, which declares “[a] state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

It argues that since the legislature did not extend the governor’s state of emergency last May, he no longer has the authority to continue issuing states of emergency relating to COVID-19.   

Evers’ legal team rebuts this point arguing that the 60-day limitation found in 323.10 does not cabin or limit “when” a governor may recognize that emergency conditions exist. In other words, nothing in the statutes keeps the governor from declaring multiple or successive states of emergency as new conditions arise. They liken it to multiple floods occurring by the same river in different months. They are factually similar in that they involve the same river, but they are distinctly different emergencies.  

But in making this argument, they’re essentially claiming the governor has unlimited power to renew, unilaterally and indefinitely, successive states of emergency — an expansionist view on executive power a conservative court is unlikely to share.

Practical Matters

The Senate’s joint resolution raises other distinct challenges. On the legal front, it doesn’t seem to resolve the question of Evers’ statutory authority. If the state Assembly passes the resolution revoking the governor’s January 19th emergency order, Evers can just issue another order stating some new emergency. This was the very point mentioned by Justice Rebecca Bradley during oral arguments as forming the basis for Fabick v. Evers.

If revoked by a joint resolution, would Evers issue another state of emergency? His lawyers certainly made the case. Not only is the governor empowered by state law to recognize a public health emergency, they argued in Fabick, but he can also issue any orders as he “deems necessary for the security of persons and property”—at least according to the way they read Wisconsin statute 323.12 (4)(b).  

Rick Esenberg, President and General Counsel of the Wisconsin Institute of Law and Liberty (WILL), doesn’t believe that the governor can just declare a series of emergencies under existing law. In WILL’s amicus brief, Esenberg argued that if the court interpreted the statutes as allowing the governor “to exercise sweeping emergency power indefinitely,” it would violate the nondelegation doctrine. In layman terms, the nondelegation doctrine protects the legislature from itself (i.e., putting up guardrails to keep it from granting too much of its legislative power away to the executive branch).     

When I asked Esenberg whether the joint resolution was the right mechanism to settle such a dispute, he said that such disagreements are typically resolved only by amendments to the statutes or by a court decision. 

“But that doesn’t mean that the legislature does not have an obligation to stand up for rule of law and the Constitution,” Esenberg said. “It [the legislature] ought to make clear it doesn’t think that the Governor has this power, but that doesn’t mean it has to stand back and let the courts do the work.”

Other Considerations

Of course, executive orders, court cases, and joint resolutions don’t happen in a vacuum. We’re trying to navigate a once-in-a-century pandemic and trying to do it without botching the vaccine rollout. At this rate, it could take nearly a year to reach herd immunity, so the medical community is strongly urging the need for mask-wearing. If Republicans revoke the governor’s recent order, they will no doubt take a beating for it. That might be well and good in strongly conservative districts, but not so much everywhere else.   And if Evers responds defiantly with another executive order, will Republicans have enough patience and resolve to play a cat-and-mouse game with a series of joint resolutions?    

Fabick v. Evers could definitively answer this difficult question concerning Evers’ unchecked powers at any point. Oral arguments were made back in November and a decision could come down at any moment; but then again, it could take months. We just don’t know.

Whatever the state Assembly decides to do with the joint resolution, it will have broader implications. How do Republicans criticize Evers’ rollout of the vaccine as dangerous while also revoking a mask mandate? Can they effectively make the public case that the joint resolution is really about Evers violating state law rather than partisans not taking the pandemic seriously?

We shall see.