MADISON – Wisconsin’s COVID-19 response plan landed Monday back in the hands of a divided and skeptical state Supreme Court.
The justices split 4-3 in May when they struck down the stay-at-home order issued by the administration of Gov. Tony Evers. Now, they must decide whether to uphold policies the Democratic governor has put in place since then to fight coronavirus outbreaks that have erupted across the state this fall.
The justices heard arguments in the latest case virtually — a practice they have followed for months to try to limit the spread of the virus. They have put the case on a fast track and are expected to issue a decision soon.
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Evers and his allies hope to win the vote of Justice Brian Hagedorn, who was elected in 2019 with the support of Republicans but joined with the liberal justices in dissent in the earlier coronavirus case.
But during Monday’s arguments, Hagedorn showed sympathy for those who contend Evers can’t extend an emergency declaration for more than 60 days without the permission of the Republican-led Legislature.
The law limiting emergency declarations to 60 days “certainly handicaps the governor in terms of the way he may respond, but that’s because the governor only has the powers he’s given by the Legislature,” Hagedorn said.
“The Legislature ordinarily gets to make the policy decisions and the governor has to execute them whether the governor likes them or not. And nobody’s questioning the governor’s sincerity in trying to do what he thinks is right here, but he can only do what the power he’s been given to do (allows), right?”
Hagedorn’s views could determine which way the case goes.
Since the decision in May, the court’s liberal contingent has grown with the addition of Justice Jill Karofsky. If Hagedorn were to side with the liberals, they could form a majority backing Evers.
But Hagedorn didn’t appear to agree with Karofsky and the other liberal justices as he questioned whether Evers could invoke emergency powers for more than 60 days without the approval of lawmakers.
“Those are broad, extraordinary powers that it seems like the Legislature wanted to only allow for a very short period of time,” he said.
The case was brought by Jeré Fabick, president of Caterpillar equipment dealer Fabick Cat. He is a prominent GOP donor and a policy adviser at the conservative Heartland Institute.
Fabick’s attorney, Matthew Fernholz, said Evers’ executive orders of recent months are invalid because his emergency powers have expired.
“To extend (the emergency declaration) beyond 60 days, he needs permission from the Legislature,” he told the justices.
Evers has been issuing successive emergency orders because lawmakers haven’t acted. Assistant Attorney General Hannah Jurss argued Evers could do that because the pandemic has worsened over time.
Conservative Justice Rebecca Bradley suggested the Legislature is the one that should be determining how the state responds to the pandemic.
“The issue isn’t whether or not the government as a whole has the powers or should exercise powers given an ongoing pandemic situation like we have facing the people of the state of Wisconsin,” she said. “The question is who gets to exercise those powers.”
The liberal justices sided with Evers, saying he was trying to fight the virus while Republican lawmakers were declining to act. The Legislature has not met for seven months and many Republicans have said there is nothing more the state government should do to fight the virus.
“The Legislature has a lot of power here, should they choose to use it,” Karofsky said.
The lawsuit could wipe out Evers’ COVID-19-related executive orders, such as those that limited the capacity of bars and restaurants and required people to wear masks. The capacity limits are no longer in effect but the mask requirement is.
If the courts throw out the emergency orders, Evers and GOP lawmakers would have to come up with a COVID-19 strategy together — something that has proven impossible so far. If they didn’t act, it would be left to local officials alone to tackle the pandemic.
A ruling in Evers’ favor could broaden his ability to deal with the pandemic as he sees fit.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.