Wisconsin Supreme Court rules mask mandate invalid, scales back governor’s ability to issue health orders

MADISON, Wis. – The Wisconsin Supreme Court on Wednesday blocked Democratic Gov. Tony Evers from issuing any new public health emergency orders to mandate face masks without the approval of the Republican-controlled state legislature.   

In a 4-3 decision, conservative justices in the majority declared the statewide mask mandate invalid and ruled Evers exceeded his authority in issuing multiple emergency declarations over the ongoing COVID-19 pandemic. Evers used the emergency orders to require face coverings be worn indoors statewide after lawmakers opted not to.

The decision in Wisconsin comes a day after Arkansas Gov. Asa Hutchinson lifted a statewide mask mandate while expanding COVID-19 vaccine eligibility to adults 16 and older. Wisconsin and Arkansas join a handful of states that have lifted mask mandates in recent weeks, including Texas, Mississippi, Iowa, North Dakota, Wyoming and Montana.

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Wisconsin law says governors may issue health emergencies for 60 days, at which point the legislature must approve an extension. Evers has argued he may issue new emergencies because the pandemic’s threat has changed, similar to emergency declarations over separate flooding events in the same river.

“The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not,” Justice Brian Hagedorn, writing for the conservative majority, said.

Hagedorn said state law governing public health emergencies “must be read to forbid the governor from proclaiming repeated states of emergency for the same enabling condition absent legislative approval.”

Justice Ann Walsh Bradley, writing for the minority, said: “This is no run-of-the-mill case. We are in the midst of a worldwide pandemic … with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision.”

The statewide mask mandate was set to expire Monday but now ends immediately following Wednesday’s ruling. 

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The decision to end the emergency could cut off $50 million a month in federal food assistance to low-income people.

Following the decision, Evers and GOP lawmakers could come up with a new COVID-19 strategy together — something that has proven impossible so far. But it’s unlikely they will. Republican lawmakers have argued against face mask mandates and other mitigation measures. Without statewide rules, local officials will tackle the pandemic on their own. 

The move comes as President Joe Biden is urging governors and state leaders not to lift face mask mandates amid a 20% increase in new COVID-19 cases over two weeks ago nationwide, and as concerning variants of the virus are appearing across the country, including in Wisconsin. 

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Republicans this year passed a bill that would have established a limited emergency in hopes that it would keep the food assistance flowing even without an order from the governor. Evers vetoed that bill because it included other measures he opposed.

On Wednesday, the dissenters on the court warned of the possible cut in help.

“Without such measures, what are we left with as we continue the battle against COVID-19 and its fallout?” Walsh Bradley wrote for the dissenters.

In Wisconsin’s largest city, Milwaukee Health Commissioner Kirsten Johnson said Tuesday that a court ruling overturning the mandate will not override the city’s mask mandate, which was created through local ordinance.

“However, it will have an impact on the communities surrounding us, and I am concerned about it further increasing the number of cases,” she said.

Contributing: Patrick Marley and Alison Dirr of the Milwaukee Journal Sentinel; Jay Cannon of USA TODAY 

Follow reporter Molly Beck on Twitter at @MollyBeck.

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