Senate Votes to Terminate Governor Evers’ Latest Public Health Emergency and Related Mask Mandate; Assembly Defers for Now

On Tuesday, January 19, Gov. Evers issued Executive Order #104, declaring a new statewide public health emergency related to COVID-19. Pursuant to this order, the governor also issued Emergency Order #1, requiring individuals to wear face coverings while indoors or in an enclosed space (other than a private residence), if other individuals not from the same household are present.

The order requiring face coverings used the exact same language as the governor’s previous mask mandate, which was signed on November 20, 2020, and set to expire on January 19, 2021. The previous mask mandate was issued pursuant to the governor’s previous emergency order, which covered the same 60-day period.

The new emergency declaration also used much of the same language as previous declarations, and once again designated the Department of Health Services (DHS) as the lead agency responding to the emergency. Both the emergency declaration and the mask mandate referenced the new, more contagious variant of COVID-19 that was first identified in Wisconsin on January 12 as a primary justification for the latest orders.

On Thursday, January 22, Senators Steve Nass (R-Whitewater) and Julian Bradley (R-Franklin) introduced a legislative resolution (Senate Joint Resolution 3) to end the governor’s public health emergency. More than two dozen Republican lawmakers from both houses joined as co-sponsors. The Legislature has the power to terminate an emergency declaration (and thus, any related orders) by a joint resolution passed by a majority of both houses. On Tuesday, January 26, the Senate passed the resolution 18 to 13, with Sens. Rob Cowles (R-Green Bay) and Dale Kooyenga (R-Brookfield) joining Senate Democrats in opposition. Sen. Robert Wirch (D-Somers) did not vote.

Although the Assembly had originally planned to take up the measure on Thursday, January 28, Republican leadership decided to delay a vote on the resolution because of its potential fiscal impact on the state. For example, emergency funds for the Supplemental Nutrition Assistance Program (SNAP) that the federal government appropriated last year may be contingent on the state having an active state of emergency. Speaker Robin Vos (R-Rochester) told reporters that the Assembly will wait to vote on the Senate’s resolution until the issue is better understood, in order to avoid jeopardizing federal funds.

In an attempt to address this issue, the Senate on January 28 added an amendment to Assembly Bill 1 that would allow the governor to declare a COVID-19 emergency only as necessary to receive and maintain federal funds. Read more about that here. [link to our post]

Supreme Court Has Yet to Rule on Governor’s Emergency Powers

Meanwhile, the Wisconsin Supreme Court has yet to issue a decision in a lawsuit challenging the governor’s authority to order multiple states of emergency on the same subject. The governor declared a string of public health emergencies in March, July, September, and November of 2020. The Court heard oral arguments in that case on November 16, 2020; we reviewed the subject in-depth here.

Previously, in Legislature v. Palm (issued May 13, 2020), the Court declared the “Safer at Home” order issued by the Department of Health Services (DHS) to be unenforceable. Last month, the Court declined to hear as an original action a case challenging Dane County’s restrictions on private, indoor gatherings. That case was re-filed last week in Dane County Circuit Court.