UPDATED: Governor responds as GOP lawmakers move to block COVID-19 measures

Updated Jan. 22, 2021, 4:27 P.M.

After repeatedly complaining about emergency declarations that Gov. Tony Evers has issued in the face of the coronavirus pandemic, Republican lawmakers for the first time have begun formal action to block him.

Senate Republicans introduced a joint resolution Thursday that would undo the governor’s most recent COVID-19-related emergency executive order and the new statewide mask order that accompanied it. Evers announced the orders on Friday, Jan. 15; they took effect Tuesday, Jan. 19.

A spokesperson for Evers on Friday said that in moving to end the emergency, “Republicans continue their efforts to hinder our state’s response” to the virus.

On Friday afternoon, state Sen. Steve Nass (R-Whitewater) announced that the resolution, SJR-3, would be on the calendar for the Senate floor session on Tuesday, Jan. 26. Nass is one of 15 lawmakers listed as authors of the measure. The Legislature has a floor period scheduled for Tuesday, Jan. 26 through Thursday, Jan. 28.

The resolution declares that “the public health emergency declared by the governor in Executive Order #104 on January 19, 2021, in response to the COVID-19 coronavirus, is unlawful and is terminated,” and that “termination … applies to all actions of the governor and all emergency orders issued pursuant to the declaration of the public health emergency.”

If the Republicans’ resolution makes it to the floor of both the Senate and the Assembly, it is almost certain to pass, ending the emergency declaration and mask order. Republicans hold majorities in both chambers, and individual Republicans in the Senate and the Assembly have consistently criticized Evers for the mask orders he has issued starting in late July.

“While Gov. Evers works to keep Wisconsinites healthy and safe and distribute vaccines across our state, Republicans continue their efforts to hinder our state’s response,” Evers’ deputy communications director, Britt Cudaback, said in a statement issued Friday morning. “Republicans haven’t taken COVID-19 seriously from the beginning, and they still aren’t now more than 280 days since they last sent a bill to the governor’s desk.”

A simple majority of each chamber is sufficient to pass a resolution, which does not require the governor’s signature. No Republican lawmaker has publicly expressed support for the governor’s health emergency orders or mask mandates.

Evers has declared new 60-day health emergencies, accompanied by mask mandates, beginning July 30, and subsequently on Sept. 22 and Nov. 20, and again with the Jan. 19 order.

Evers first issued an emergency executive order in response to the coronavirus pandemic on March 12, expiring on May 11. The law authorizing the governor to declare an emergency puts a 60-day time limit on each declaration, after which the emergency can only be extended with the consent of the Legislature.

The Senate joint resolution declares that all of the subsequent orders are effectively extensions of the March 12 order and therefore illegal without the Legislature’s approval.

The conservative law firm Wisconsin Institute for Law & Liberty has made the same argument in a lawsuit it first filed against Evers after the July 30 emergency declaration. That suit is now before the Wisconsin Supreme Court, which heard arguments in November but has not yet announced when it will issue a ruling.

The Evers administration argues that the emergency declarations were issued in response to specific new circumstances as the pandemic surged, rather than extensions of the first emergency or subsequent ones, and are therefore legal.

At the start of the 2021 legislative session, Evers urged lawmakers to make COVID response the first bill they passed and put forward a bill consisting of items that he said he and the Republican leaders in the legislature had all agreed upon in talks late last year. Instead, Assembly Republicans submitted their own bill that included some of those items but that also contained several provisions the governor indicated he would probably veto.

That bill passed the Assembly on a party-line vote and went to the state Senate, where Republican leaders removed all but one of the controversial elements. On the Senate floor, they moderated the last one — a provision that would give businesses, nonprofits and other institutions legal immunity from being held liable for exposing people to the virus. The bill passed the Senate with wide bipartisan majority, and Evers said he would sign it once it came to his desk.

Marquette University Law School polls have found nearly 3 out of 4 Wisconsin residents agreed that face masks should be required in public places during the pandemic. The October 2020 poll four 72% supporting the requirement, and with at least 60% of people supporting it in every region of the state.
majority support for the state’s requirement for face masks in public places during the pandemic.

The only other time that the Legislature’s Republican leaders have taken steps to block actions of the Evers administration in response to the pandemic was in the spring, after the governor extended the Safer at Home order that the administration first issued March 25.

In that instance, Assembly Speaker Robin Vos (R-Rochester) and the Senate majority leader at the time, Scott Fitzgerald (R-Juneau), filed a lawsuit that argued that order could not be extended without the Legislature’s approval. The Wisconsin Supreme Court sided with the GOP lawmakers on a 4-3 vote, throwing out the Safer at Home extension on May 13. (Fitzgerald has since left the state Senate after he was elected to Congress Nov. 3.)

During the Supreme Court arguments over that lawsuit, the lawmakers said they were drafting a plan to replace the governor’s order, but in talks with Evers after the court ruling rejected his initial proposal and have since stated they didn’t believe a statewide plan was necessary.

The GOP leaders also endorsed the WILL lawsuit targeting the the emergencies and the mask order, but they did not otherwise intervene in the case.