Wisconsin has been an early battleground for challenges to the presumption that perceived health threat gives lawmakers new authority. On Wednesday, March 31, the State Supreme Court ruled 4-3 against Governor Tony Evers’ ability to issue any new health emergency orders without approval from the state legislature.
After Wisconsin’s earlier rulings against stay-at-home orders and citizen pushback in opposition to restrictions on church services, the most recent case examines whether the authority was exceeded when State of Emergency declarations were unilaterally renewed: “Governor Tony Evers declared multiple states of emergency… triggering a statutory grant of extraordinary powers to the governor and the Department of Health Services (DHS) to combat the emergent threat. The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not.”
Evers’ original State of Emergency was in effect for 60 days before being extended by Executive Order without consulting legislature, and without legislative renewal—as appears clearly required by state law: “The statute contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat… petitioner Jeré Fabick asks that we declare these second and third COVID-19-related emergencies unlawful under Wis. Stat. § 323.10. We agree that they are unlawful and so declare.”
Wisconsin’s state Supreme Court affirmed that its legislature’s statutory authority supersedes its Governor’s Executive action, an opinion that could carry significant precedent: “…if the governor has authority to exercise certain expanded powers not provided in our constitution, it must be because the legislature has enacted a law that passes constitutional muster and gives the governor that authority.”
Wednesday’s ruling remarks on the tug-of-war that occurred when Wisconsin’s state legislature actively revoked the State of Emergency, rather than just refusing to extend it—and Governor Evers responded the same day by reinstating it through another Executive Order: “…the state of emergency proclaimed in Executive Order #105 exceeded the Governor’s powers and is therefore unlawful… The plain language of the statute explains that the governor may, for 60 days, act with expanded powers to address a particular emergency. Beyond 60 days, however, the legislature reserves for itself the power to determine the policies that govern the state’s response to an ongoing problem. Similarly, when the legislature revokes a state of emergency, a governor may not simply reissue another one on the same basis.”
Justice Brian Hagedorn delivered the majority opinion, which addresses dissent: “Some may wish our analysis would focus on ensuring the Governor has sufficient power to fight COVID-19; others may be more concerned about expansive executive power. But outside of a constitutional violation, these policy concerns are not relevant to this court’s task in construing the statute. Whether the policy choices reflected in the law give the governor too much or too little authority to respond to the present health crisis does not guide our analysis. Our inquiry is simply whether the law gives the governor the authority to successively declare states of emergency in this circumstance. The dissent, in contrast, spends considerable space discussing outcome-focused concerns. But our role is not to rule in favor of outcomes we like; it is to interpret and apply the law, whether we like it or not.”
In an attempt to encourage decisions like these, citizen protests against stay-at-home orders, mask mandates, and closures of schools and private businesses have made international news since at least April 2020.
As the weather warms in 2021, a new wave of citizen protest events has arisen alongside judicial challenges, notably the more or less centrally organized Worldwide Demonstrations that were held on March 20, to “make it clear that the government’s attempts to divide us have been unsuccessful.” The organizational website for that purpose declared, “Together we will ALL demonstrate against the current Corona measures!” and live-streamed the events. While its Telegram channel keeps short videos of the events that occurred worldwide, here are some of the marches from Bulgaria, Scotland, the Netherlands, and London.
Floridian, Chris Nelson is organizing a ‘Million Maskless March and Mask Burning’ for April 10, in Ft. Lauderdale with ReOpen South Florida, UnMasking America, and the Libertarian Party of Broward County. Nelson wrote, “The mask burning is in full cooperation with local law enforcement and will be done in a safe and controlled manner… Jesus said we should not hide our light but show it to the whole world. Our goal is for people to see us and be inspired to join in!” Nelson has, however, been mentioned in previous reports for his involvement in a filmed protest that did draw the attention of both law enforcement and Twisted Sister frontman Dee Snider.
According to Nelson, “This is a non-partisan event, but ALL political signs and flags are welcome…Signs are VERY important. Signs with three to six BIG BOLD WORDS are the best. “MASKS ARE SLAVERY. ” “NO MORE MASKS. ” “MASKS OFF CHILDREN. ” “NO VACCINE PASSPORTS” are good examples. Broward County Government is pushing the experimental vaccine hard, so signs against forced vaccinations are also encouraged.”
— Chris Nelson (@ReOpenChris) March 29, 2021
Florida has gained national attention for enforcing relatively loose restrictions on its citizens compared to other states. ZeroHedge uses CNN reporting to support that Florida’s Governor Ron DeSantis, who received criticism from those who wanted a more strict lockdown, has results to justify his laissez-faire approach: “The state has had about 3% more Covid-19 cases per capita than the U.S. overall, but about 8% fewer deaths per capita.”
DeSantis is quoted as saying, “If you look at what’s happening in South Florida right now, I mean this place is booming. It would not be booming if it was shut down… Los Angeles isn’t booming. New York City’s not booming. It’s booming here because you can live like a human being.”
DeSantis has promised to use executive action against so-called Vaccine Passports in the state and has been vocal in favor of vaccine choice. “We always said we wanted to provide it for all but mandate it for none.”