September 24, 2020 at 11:54 a.m.
For the sake of our children, our health, and our democracy, GOP must stand up to Evers
For the sake of our children, our health, and our democracy, GOP must stand up to Evers
On the one hand, the governor declared a state of emergency on Sept. 22 to last for another 60 days, while on the other hand he already had exactly the same emergency public health declaration in place since July 30, using the same exact language in its operative provisions, which, notably, he declared was still in effect.
So the governor has two health emergencies going at the same time for the same thing, kind of like declaring that you intend to cut a person's head off twice.
Talk about doubling down.
In any event, it seems nonsensical because doubling down on the declared health emergencies doesn't double the governor's power, especially when Evers has apparently decided he already has complete power to rule the state without the Legislature or the courts.
Now it's obvious what the governor is doing. He wants to extend his statewide face mask mandate for another two months - and perhaps issue other dictatorial edicts along the way - without having to deal with the Legislature.
His only other option would be to seek to have the Legislature extend the July 30 state of emergency, as statutes require. So, zap, he declares a supposedly different state of emergency, which looks just like the other state of emergency - as he did also on July 30 - to get around the law.
Of course, it's obvious to everyone that's what the governor is doing, and conservatives have called him out on it. After all, if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. Right? Indeed, even before the latest order, he was already being sued for doing the same thing with the July 30 second declaration.
So it's a no-brainer the governor is going to lose in court, right?
Well, not necessarily. It turns out there is some clever legal strategy going on, and, while it likely won't prevail in a case before a conservative Supreme Court, it's not out of the question, especially when you consider how whacked out some of those conservative justices are (hint: Brian Hagedorn).
The cleverness comes not in the operative provisions of the emergency declarations, which, again, are identical, but in the recital provisions, those "whereas" clauses that explain the reason for the actions being taken.
Those are quite different.
In the July 30 declaration, the administration explains how it had whipped up on that bully virus with its first emergency declaration back in March, keeping infections low, and how it successfully "bent the curve" (we thought the curve was supposed to be flattened, but never mind), but now, with the lockdown gone, the state had suddenly become "disease burdened" with drastic increases in infections, hospitalizations, and deaths.
In other words, the first emergency declaration had resolved the emergency, but now it was back and a whole new declaration was needed.
Likewise, in the Sept. 22 declaration, the governor is arguing the July 30 declaration had once again put the virus on the ropes with its face mask mandates. The administration observes how infections had dramatically dropped during the month after the July 30 declaration.
Ah, but the Sept. 22 declaration explains, those pesky college students had suddenly come back to school, and, oh gosh, there was a whole new spike in cases and a whole new emergency to deal with; hence, emergency declaration number three.
Sometimes, courts do consider recital provisions - the reason for the operative actions - in deciding cases. And a case could be made that the second emergency was a separate emergency, even if for the same pandemic, due to "waves of acceleration and deceleration," as the second declaration argues.
But in the latest order, the third time likely won't be the charm. After all, unlike the July 30 edict, the third emergency is overlapping with the second emergency, which is also a public health emergency related to the broad pandemic.
In other words, the acceleration and deceleration of disease is all occurring within one emergency period, and so it shouldn't make a difference why it was decelerating or accelerating: The emergency could just be extended because it hadn't ended.
No need for a third.
To be sure, though, while the governor's argument is just not clever enough, it could always turn out to be clever enough to get by Hagedorn, so who knows what the court will do? In any case, Evers has political reasons to issue the order.
The first is, according to polls, the face mask mandate is pretty popular, and the governor is betting GOP legislative leaders won't have the stomach to knock it down right before an election.
Thus, a court fight, even if he loses, will allow him to extend the mandate beyond the November election, and to assert dictatorial control over public policy for yet another two months, and perhaps even longer.
That's dangerous.
For one thing, face mask mandates are controversial, especially for school children and those with compromised health. Their effectiveness is debated, and they come with stigmas based solely on the exercise of personal choice. As such, local communities should decide for themselves what mandates are needed, or not, rather having to listen to the law laid down by two bureaucrats, Tony Evers and DHS secretary Andrea Palm.
Then, too, who knows what other mandates will come with this latest emergency. Could there be another lockdown, with its vast economic consequences and potential for other deaths because people are scared to seek care for other conditions, or suicides, or murder, or drug overdoses?
Again, because one size does not fit all, each local community should decide what measures are needed.
Beyond the potential health and economic ramifications, there is the need to preserve our democratic institutions and thus our personal liberty. Allowing the governor to brazenly defy state law and become the state's supreme ruler destabilizes public institutions and erodes participatory and due processes.
Involving all our elected representatives and local communities preserves them.
By not convening the Legislature immediately and quashing the governor's new emergency declaration, GOP legislative leaders seem to be opting for supreme executive authority. As GOP Sen. Steve Nass said this week, the Republicans are hiding behind lawsuits when the law allows them to kill the emergency declaration with a simple joint resolution.
By not taking that action, the GOP leadership will be legitimizing Evers's conduct, no matter what the courts say down the road.
It's not as if the GOP could not kill the emergency declaration, and then invite the governor to immediately sit down and negotiate strong recommendations for communities to consider, depending on their own situation.
By the time people read this, we hope the GOP will have taken that path. It's a way to demonstrate true leadership that involves all our elected representatives. It's a way to underscore the point that liberty cannot be sacrificed upon the altar of any public crisis, and to make the point that a truly responsible response to a crisis comes through deliberation and democracy, not executive fiat.
We should take a moment to remind ourselves that dictators who seek supreme power have not historically been concerned about the public interest. Their interest is one of personal power.
Strong GOP leadership now to make that point may well lead to a fourth declaration in Wisconsin: Whereas Evers is a would-be dictator, let us resolve to fire him in the next election.
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