Wisconsin Supreme Court rules against Gov. Evers' emergency powers, strikes down mask mandate

NOW: Wisconsin Supreme Court rules against Gov. Evers’ emergency powers, strikes down mask mandate

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MADISON, Wis. (CBS 58) -- The Wisconsin Supreme Court struck down Gov. Tony Evers' mask mandate ruling he overstepped his authority when issuing multiple health emergencies related to the pandemic.

The high court ruled 4-3 on Wednesday, March 31, with all conservative justices in the majority and all liberal justices voting in dissent. 

"The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully," wrote conservative Justice Brian Hagedorn wrote for the majority in the decision. "We conclude he did not." 

With no mask order in place, local governments will be left to decide to enact their own mask requirements. The city of Milwaukee's mask rule is still in effect. The ruling also follows President Joe Biden this week urging governors to not lift mask requirements as cases are surging across the nation and in Wisconsin. 

Since the coronavirus outbreak began, Evers has issued multiple public health emergencies in an attempt to reduce the spread of COVID-19. In August, Evers issued his first mask order, since then he's extended it four times.

State law limits these orders to last 60 days unless they are extended by the Legislature. Evers has argued he can issue new health emergencies because the pandemic in Wisconsin has changed dramatically over time. 

Now, Evers will need approval from the Legislature before issuing future orders, such as a mask mandate. However, it's unlikely they reach an agreement since Evers and Republican lawmakers have been unable to agree on how to respond to the pandemic since it began. 

"Our fight against COVID-19 isn’t over—while we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic," Gov. Evers said in a statement in response to the decision. 

For months, Republicans have long opposed a statewide mask order, arguing it’s not about masks, but say once an emergency order expires it can only be extended with approval from the Legislature.

“The Wisconsin Supreme Court confirmed what we already knew. Governor Evers exceeded his authority by issuing multiple emergency orders without consulting the legislature," said Assembly Speaker Robin Vos (R-Rochester). “People and businesses are free to make decisions based on what’s best for them and don’t need state government telling them how to live their lives.”

In February, Republican lawmakers successfully voted to end the mask requirement by passing a resolution in the Legislature, but moments after it passed, Gov. Evers issued a new one.

Senate Majority Leader Devin LeMahieu (R-Oostburg) celebrated the decision by the high court by saying the governor created a state of "chaos" when using his emergency powers.

“I applaud the court for ending this constitutional crisis in our state," LeMahieu said in a statement. "The Governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped."

Democrats were frustrated with the decision as health professional say masks are a crucial tool in preventing the spread of the virus. 

“There are two things this pandemic has taught us, masks work and Republicans don’t," said Democratic Senator Jon Erpenbach (D-West Point). "While Governor Evers has worked diligently to protect the health and wellbeing of our communities, Republicans refused to do their job and undermined the governor’s efforts every step of the way as thousands of Wisconsinites lost their lives to this virus."

The long-awaited decision comes months after oral arguments on the case. The lawsuit filed by Jere Fabick, a conservative donor in Wisconsin, challenged Evers’ ability to enact multiple emergency orders.

During oral arguments in November, Fabick’s attorney, Matthew Fernholz, argued state law prevents the governor from enacting multiple emergency orders because the events that led him to issue his first order, ‘Safer at Home,’ already expired and the circumstances why he issued it -- the pandemic -- have not changed.

UW-Madison Political Science Professor David Canon said the high court's decision was expected after Justice Hagedorn in November questioned Evers' use of emergency powers, calling it an "extraordinary grant of short-term power."

"It's definitely a blow to the governor's emergency powers, but I think also it probably was a correct interpretation of the law," said Canon.

Food Assistance Program at Risk

Revoking the mask mandate could also result in the state losing millions in federal funding that provides food assistance to low-income families. 

States who enact emergency orders receive additional federal funding for the program after Congress passed the federal CARES Act.

Without an emergency order in place, Wisconsin could be at risk of losing $49 million a month for the FoodShare program that helps feed low-income households, according to a memo released by the Legislative Fiscal Bureau in January. 

Earlier this year, Republicans approved a bill to secure the funding for SNAP benefits after they passed a resolution to end Evers mask order. In doing so, they also added several other measures to the bill that the governor opposed, resulting in a veto. 

"I’m extremely upset and concerned because I know those individuals who are going to lose their snap benefits can’t afford anymore hardship," said Democratic Senator LaTonya Johnson. (D-Milwaukee). 

Rep. Joe Sanfelippo (R-New Berlin) believes the Legislature will act to make sure federal funding continues for the FoodShare program.

"Will have to come in and fix it again, hopefully this time (Evers) won't veto it because these dollars are at stake now," said Sanfelippo. 

Johnson said she has little faith Republicans won't try a "power grab" and add other proposals to the bill to force a governor's veto.

"I don't trust whatever they do will be a clean bill," said Johnson. "My Republican colleagues don't care about poor people." 

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