Conservative law firm argues to court governor should go through rulemaking process for pandemic response

MADISON, Wis. — There are now multiple requests in front of the Wisconsin Supreme Court to hear a case challenging the state’s mask mandate. The court has not said if it will take them up.

The Wisconsin Institute for Law and Liberty, the conservative law firm behind one of the efforts, argues that Gov. Tony Evers didn’t have the authority to issue multiple public health emergencies. Though the legislature could overturn them, the firm wants the courts to step in and enforce this.

“Our law has the capacity, it has the avenues to respond, unfortunately those in power have chosen not to use them,” said Rick Esenberg, the firm’s president.

He said the court’s ruling in May against the stay-at-home order should have forced Evers to go through a rulemaking process instead of declaring emergencies. That path would have included the legislature in the pandemic response.

“It’s perfectly possible for the state to have a mask mandate if it wishes to have one and to impose that burden on its citizens, but it has to do it in the right way,” Esenberg said.

A judge in western Wisconsin didn’t agree with Esenberg’s argument when it heard the case earlier this month, especially given the power the legislature does have to overturn these orders if members pass a resolution in both the senate and assembly.

The governor continues to argue these orders – which allow for a statewide mask mandate – are necessary.

“If this weren’t serious and this wasn’t an emergency, I wouldn’t be sitting here twice a week asking you to stay home, physically distance, and wear a face covering whenever you’re out,” Evers said during a press call Thursday.

Evers’ lawyers argue in a separate case he can declare more public health emergencies if they are merited. They compare the current situation with thousands of new cases of COVID-19 per day to receding and rising flood waters or multiple responses during an ongoing war.