October 19, 2020 at 1:54 p.m.
A case of misplaced logic
A case of misplaced logic
Or perhaps they just don't live life with any logic at all. After all, Assembly speaker Robin Vos ain't no Mr. Spock.
That's why we still have an illegal emergency declaration strapped around our collective necks.
As we report today, a judge last week refused to end Evers' emergency public health declaration, the third one he has issued this year related to the pandemic. Conservatives argued that the law places a 60-day time limit on any assumption of emergency powers unless the Legislature extends it.
They argued that because, well, that's what the law says.
The administration countered, of course, that the law doesn't say he can't issue successive 60-day orders if emergency conditions continue to exist, or recur, overlooking that little part about legislative concurrence.
Then, too, most of judge Michael Waterman's ruling upholding the governor's ludicrous position was simply illogical. For instance, he wrote, allowing a governor to issue successive emergency declarations "prevents the governor from perpetuating emergency powers after the emergency has dissipated."
It forces the governor to reexamine the situation, he wrote.
Actually, the 60-day time limit and the need to get approval from the Legislature to go beyond the 60 days is the true check on power.
Needing to ask the Legislature is what forces a governor to re-examine the situation. There's no need to re-examine anything if the governor can act unilaterally.
The need to ask for an extension is also actually written in the statutes, rather than derived from the clouded reasoning that allowing a governor to act unilaterally without anybody's consent is somehow checking his or her power. This is seriously misplaced logic.
What if that governor doesn't want to do the right thing or re-examine the situation? What's to "force" the governor to do so? The answer is nothing.
The bottom line is, if a governor can simply issue an executive order declaring a state of emergency the day after he allows an identical one to expire, that renders superfluous the statutory language requiring legislative approval for a declaration to continue.
And court decisions can't render statutory language superfluous.
All that said, Waterman did make one good point: If the Legislature wants to end the state of emergency, all it has to do is vote to do so, and the Legislature has not done so. That doesn't make his decision any better - the court case is not just about this emergency declaration but about the power of a governor to behave this way in any emergency situation, real or imagined.
That's a court battle that needs to continue to be fought.
Meanwhile, however, we do still have this state of emergency to deal with. The GOP argues that voting to end the governor's new state of emergency would imply that what the governor is doing is legal.
It would imply no such thing. Again, misplaced logic. It would simply recognize that the court battle will be long contested and that the Legislature can make its own statement now about gubernatorial overreach. On the other hand, the Legislature's inaction underscores Waterman's implicit point, namely, by not contesting the governor's powers in its own chambers, the Legislature is legitimizing it.
When you think the governor has gone off the rails, why on earth would you not use the tools at your disposal to stop the train? It might not be the needed long-term fix, but it would keep the train from breaking thought the barricades.
The truth is, the GOP is scared to end the state of emergency because they believe it is popular. They are hiding behind a flimsy excuse for political cover, and that never turns out well.
Besides, there are other public policy reasons for overturning the state of emergency and with it the statewide face mask mandate and limits on public gatherings. The reason is, such mandates should be controlled, if they are implemented at all, by local communities.
Even the World Health Organization this week warned of the massive damage being done to economies and physical and mental health because of lockdowns, and one leading WHO envoy urged that any restrictions be measures of last rather than first resort.
Putting lockdown decisions in the hands of local communities helps to ensure that that happens. It may be that Madison needs limits on public gatherings - that should be for them to decide - but when the governor decrees such a mandate for the entire state without regard for regional and local differences, that's an explicit decision to use lockdowns first and ask questions later.
Many lawmakers have expressed these sentiments in so many words. But actions speak louder than words, and the Legislature should act.
It should overturn the governor's declared state of emergency because it believes his legal authority to have done so is invalid. It should act because of the damage mass lockdowns do to the public.
It should act, not least, to ensure local control of public health decisions. After all, after the Supreme Court struck down Evers's Safer at Home order, numerous municipalities did enact their own mandates, some of them carrying fines for violations. Meanwhile, the governor seems not to worry or care about the impact that lockdown measures have on tourism areas and on smaller taverns and restaurants in rural Wisconsin.
The decisions are too important to state to decide, much less one man. When Evers declared his state of emergency, Mr. Vos said, "No one branch of government can rule outside the letter of the law and go unchecked even during a pandemic."
Well, Mr. Vos, because of the court decision this week, the executive branch is going pretty much unchecked, and only the Legislature can check it at the moment.
It's time for it to do so.
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