Mask mandate, bar closures unlikely
After court ruling, unclear whether Evers can act
MADISON - The coronavirus is showing signs of acceleration in Wisconsin but unlike states experiencing a resurgence, Gov. Tony Evers likely won’t be mandating face masks or issuing orders to close bars — both tools other governors are using to prevent new outbreaks.
Because of a state Supreme Court decision in May that struck down much of the governor’s stayat-home order, Evers says his administration no longer has the sole authority to issue statewide mandates aimed at curbing the spread of the virus.
But whether Evers can or can’t take such actions is under debate.
Legal experts don’t all agree that the Supreme Court ruling prevents the governor from shutting down bars if virus cases skyrocket, or requiring masks like governors in Kansas, Michigan, Illinois and California have mandated.
“The Wisconsin Supreme Court’s decision in (Legislature v. Palm) expressly stated that it was not ruling on the governor’s powers. As a matter of precedent, that means that (the ruling) does not foreclose the governor from issuing an order
mandating masks or closing certain businesses,” said University of Wisconsin Law School professor Miriam Seifter, who specializes in executive power and the separation of powers at the state and federal levels.
The state Supreme Court’s decision striking down the stay-at-home order was focused on how much power Evers’ health secretary had after the expiration of an emergency declaration that Evers had issued.
Jeffrey Mandell, a liberal attorney in Madison who has done some work for Evers, said the governor could issue a new emergency declaration to put in place new rules to fight the coronavirus pandemic. Under that emergency order he could try to impose a mask requirement, Mandell said.
“That’s one of the things the governor could do if he were so inclined,” he said.
A new emergency declaration could face legal challenges. Challengers could argue Evers isn’t allowed to issue a new declaration for the same emergency or that Evers doesn’t have broad powers even when he declares emergencies.
Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law and Liberty, said Evers cannot declare a new emergency over the same outbreak.
“The statute was designed to allow the governor to act in response to an urgent situation until such time as the legislature could act. That period is over,” he said.
Emergency declarations issued by governors are good for 60 days. They can be extended or cut short by the Legislature.
Seifter said it’s unclear whether Evers could declare a second public emergency over the coronavirus pandemic.
“On one hand, the 60-day limit indicates an intent to avoid perpetual executive aggrandizement. On the other hand, it must be true that factually similar situations can be distinct emergencies — for example, there might be multiple floods of a given river in spring or summer, but the emergency conditions might wane in between,” she said in an email.
“All of this suggests a fact-dependent approach to whether the governor could declare a new public health emergency.”
Seifter also said the Supreme Court decision doesn’t appear to bar the Department of Health Services from issuing “appropriately tailored orders” regarding face masks in specific settings or to close bars and other venues to contain spikes of cases.
The court’s ruling said the governor’s stay-at-home order went too far but did not invalidate the state law that provides state officials the power to act to control a virus outbreak, she said.
Thirty-eight states and Washington D.C. have some sort of face mask requirement, either in cities, for workers in certain professions, or for everyone in public places, according to the employment and labor law firm Littler.
The state Supreme Court ruling said the Evers administration should have used a procedure known as rule making — giving a GOP-controlled legislative committee veto power over virus-related policies the Evers administration wants.
Key Republican legislative leaders said this week they don’t support mandating face masks or new statewide orders to close bars, making it unlikely that committee would support the policies.
“I don’t support shuttering the state’s economy again or mandating masks,” Senate Majority Leader Scott Fitzgerald said in a statement.
A spokesman for Sen. Steve Nass, who co-chairs the committee, said the status of the virus in Wisconsin isn’t at a point where a face mask requirement or business closures are needed.
Wisconsin is not experiencing an explosion of cases like Arizona, Florida and Texas and hospitals are not at risk of running out of beds anytime soon.
“Senator Nass is confident the people of Wisconsin can make reasonable decisions for themselves in adapting to the risks presented by a virus that is with us permanently,” spokesman Mike Mikalsen said. “He believes government officials should focus on cooperative approaches with the public and refrain from excessive government mandates certain to create a backlash from the citizens of Wisconsin.”
Virus cases in Wisconsin are trending upward, with the seven-day rolling average increasing from 266 on June 17 to 418 this week.
There are now more than 28,000 people who have had or have a confirmed case of the virus and 777 people have died over the last three months. The percentage of positive tests was 7% on Sunday, a percentage last seen on May 23 but still nearly half of the peak: 12.7% on May 1.
In Dane and La Crosse counties, where cases had been disproportionately low, a surge of cases have been attributed to residents in their 20s hanging out in the college towns’ bars.
Jeff Pothof, University of Wisconsin Health’s chief quality and safety officer, said contact tracers are finding a high percentage of newly infected coronavirus patients in Dane County have been in large gatherings at bars and taverns.
He said those spaces are “the perfect environment for COVID-19 to make a comeback.”
Evers’ spokeswoman Britt Cudaback said the Supreme Court ruling has “severely hindered our ability to effectively respond to this pandemic and prevent further spread through requiring masks or limiting the size of gatherings.”
She said the governor is encouraging the public to stay at home as much as possible, limit social interaction, and wear a face mask in public.
Cudaback did not say whether Evers would have issued an order to require masks if he could.
Fitzgerald said he agreed with comments Evers made earlier this month to the Milwaukee Business Journal, saying he didn’t expect the state to need a uniform policy to curb the spread of the virus.
“We should be able to take care of those surges in a direct way, instead of impacting the entire state,” Evers said in an article published June 11. “That is our goal.”
Fitzgerald said bars and restaurants should follow guidance issued by the state’s economic development agency to ensure social distancing in their establishments.
Assembly Speaker Robin Vos, RRochester, said Wisconsin residents should take “prudent precautions” and urged them to follow CDC guidelines to protect themselves.
“We continue to monitor regional hospitalization rates which indicate hospital resources are in good shape to handle cases of the virus,” he said in a statement.
Vos did not answer whether he supported a face mask mandate.