Legal Editor’s Column: Masks – What can Evers do? An analysis.

Editor Column

Gary Ernest Grass, esq. , Legal Editor

On February 4, the Governor issued two orders: one declared an emergency; the other cited that emergency to mandate the wearing of face coverings to combat the spread of COVID-19. The order applies to people in enclosed spaces other than private homes, when persons outside their household are present, subject to about 16 other exceptions. The order may be enforced with a 200 dollar fine. This mask order expires on its own on March 20, or could be withdrawn or superseded before that. The state of emergency expires after 60 days but could be revoked by legislative action or by the governor, or could be extended by the legislature.

What is remarkable about the orders is that they were issued about an hour after the state legislature acted to end a previous state of emergency and mask order. The legislative action would have taken effect the following day, but became a dead letter when the governor issued a superseding order. The way the governor understands the law, he can continue to issue essentially the same order every sixty days finding that the emergency continues. The legislature really can’t do anything to stop him. This time around, there were 52 votes in the 99-member assembly to overturn the order. The statutes don’t require a new law to overturn an emergency order; they just require a joint resolution of the senate and assembly, something that cannot be vetoed and only requires a majority of each chamber. Opponents of the mask mandate have enough votes to keep striking down orders, but not enough votes to change the law.

There is already a case before the Wisconsin Supreme Court challenging whether the governor can do this. What does the law say about what the governor can do?

Before getting into the details, let me disclose my personal bias here. I would like to live in a place where no one would be fined for not using a mask. But I would also like to live among sensible people that did not regard it as a righteous political statement to infect me with a potentially fatal disease. My desire not to die is slightly greater than my belief in the right to infect my neighbors. But others disagree, and that’s why in the future we’ll all be speaking Mandarin. Shuō gòule!

Now let’s set that aside and try to look as objectively as possible at what Evers can and cannot do. We’ll start the way a court is supposed to start, by looking at the statutes first and avoiding constitutional issues if we can. Then we’ll look at the constitution. Of course this may not tell us how the supreme court would decide these issues. In fact, I might change my mind if a case came up and one side or the other had really persuasive arguments. But here goes:

Section 323.10 allows the governor to declare an emergency for a period of 60 days. If an emergency is so declared, section 323.12 gives him the power to enter contracts, suspend regulations, seize or destroy private property, or issue “such orders as he or she deems necessary….” He cannot suspend or violate (most) laws, but pretty much anything else is on the table, even if it would otherwise be illegal. There are a couple of other relevant statutes. Section 321.39 lets him call up the state military.

The only statute that says anything about reissuing an order is 323.10, and it says very little. It does not say that an order cannot be issued after 60 days, but if you consider that the legislature put a 60-day limit on any order, and gave an explicit power to the legislature, but not the governor to renew an order, it seems obvious the governor was not intended to be able to freely renew an order after 60 days.

Part of the rationale of divided government is that the different branches have different strengths. The legislature is ideal for forming long-term policy. But its procedures are cumbersome and poorly suited to responding to emerging crises. Yes, the legislature could hypothetically suspend some of its ordinary mechanics and vote at 3pm on a 10-thousand-page bill distributed at 1pm the same day. We’ve seen Congress come pretty close to this on a number of occasions. But most people agree this is a grotesque and disturbing way to make policy. The executive branch, in contrast, operates the day-to-day workings of the state and should have front-line specialists who are expert in their particular areas. The executive can encounter and analyze emerging issues rapidly, without hearings or debate, and formulate responses. If you disagree with the party holding the executive, you may disagree with those responses, but the executive remains the branch most institutionally suited to crafting a response with insight and agility.

This division of strengths is a good rationale for allowing the executive to move independently with a time limit, and hence supports an argument that Evers should not be able to re-issue an order after time has passed allowing legislative consideration. What the executive is good at doing quickly, the legislature is better at considering with time.

But this same division also gives Evers a good argument. What if there is a fresh crisis, or a change in an existing crisis that is evolving rapidly? The executive is in the best posture to respond. It is not as though the executive gets one chit to use in case of emergency, and must sit with hands bound in the case of a second. So it’s logical that after 60 days, Evers could point to some change or development in the COVID crisis — more have it, more are getting it, more virulent strains have been detected, protective supplies are strained, the economy has suffered further — and issue a new order as a response to the “new” emergency presented by whatever has changed. I think this is the winning argument that gives Evers the power to effectively reissue an expired order practically at his whim. To limit his discretion in this area could tie his hands in an emergency.

If it sounds to you like this power could be abused, you’re right. But the power to seize property and issue “such orders as he or she deems necessary” are also prone to abuse. These laws exist to give broad powers in emergency without clear limits because it would be hard to draft clear limits without defeating the point of the legislation. There is no good way to legislate in advance for a genuine emergency. That is one reason why checks on executive power are also stated broadly. The legislature can impeach for whatever it sees as an abuse of power. The people can recall for any reason or no reason. Where our laws fail to effectively limit emergency powers, they can at least make them politically perilous. Note that we are also talking here about an emergency power that comes from a statute. The legislature could amend or repeal the statute, or effectively cause it to be suspended for the rest of Evers’ term in office.

We haven’t addressed the constitution yet, and we have two constitutional issues to consider. First, is a statute that gives away so much power to the executive constitutional? Probably yes.

There is only one constitutional argument against it, which is that separation of powers requires the legislature to decide policy and only allows the executive to carry it out. The executive always will have some discretion to use some judgment and fill in details of policy that the legislature has not fully spelled out, but the legislature cannot give up its policymaking power wholesale. The reason why this “non-delegation doctrine” probably doesn’t apply is because in modern times it has been seen as very limited. Modern polities with large populations and complex issues would overwhelm their legislatures if they could not delegate policy particulars to administrative bodies. But some conservative jurists really want to revive the doctrine, so the courts may disagree.

The second question is what emergency powers the governor has under the constitution, that the legislature cannot take away. The constitution gives the governor one clear emergency power: to convene the state legislature away from the capital when Madison is overrun by enemies or when contagious disease is prevalent there. One other section refers to executive declaration of emergency, in the context of state officers simultaneously holding federal positions. If the governor has any emergency powers in the constitution, they either flow from these two sections or from the general statement that “The executive power shall be vested in a governor…”

For some scholars, this is enough. The advantages of the executive branch in responding to a crisis mean that emergency powers are inherent to the executive. They can point to various statements and precedents for support. But I’m with the other side. Wisconsin’s constitution did not intend for the executive to run unchecked in the event of an emergency. Nothing in our system of government calls for divided and limited government to be set aside in a crisis. There is no room in our laws for a praetor maximus. Evers can only act with legislative support. Right now he has that, in the form of a statute, even if he is opposed by a majority of legislators. Without the statute, he could convene the legislature in Kewaunee County but not much more. With it, he can keep on issuing mask orders.

Let me reiterate that I agree with this. The emergency is real. A masking order will save lives. The majority of people support the mask mandate even if this is not reflected in our gerrymandered legislature. And even though It looks weird because the legislature keeps pushing resolutions that have no effect, the law appears to be working as intended.

One final question: what will the state supreme court do? I’d obviously like for them to agree with me, but who knows? I could see a ruling that Evers cannot extend or reissue an identical order to one rejected by the legislature. But how would the court craft an order telling Evers when a new emergency order is allowed and when it isn’t? How does an order stop Evers from abusing his power while still allowing him to use it fairly? This would require the court to effectively continue legislating where the legislature left off because the legislature believed it was impossible to say more. Generally the court considers it not to be its job to do this. As with the Trump election suits, there may be political pressure to support the legislative majority, but there will be practical difficulty, legal doctrine, and professional discouragement on the other side.

We’ll see.