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Emergency Coronavirus Orders Upheld in Wisconsin, Rejected in Michigan

Emergency Coronavirus Orders Upheld in Wisconsin, Rejected in Michigan
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Racine Wisconsin Walmart greeter tells customers about mask policy

Courts in Michigan and Wisconsin rule on governors’ emergency orders. In Wisconsin, a circuit court upheld a statewide face-mask mandate and other public health emergency orders from Wisconsin Gov. Tony Evers, a Democrat. Meanwhile, the Michigan Supreme Court again ruled against Democratic Gov. Gretchen Whitmer’s April 30 executive order instituting various coronavirus containment measures—but subsequent Whitmer orders to the same effect make the decision meaningless in practice.

Having already ruled on October 2 that Whitmer’s orders were unconstitutional, the Michigan Supreme Court yesterday rejected her plea to let the orders play out a little longer anyway. Whitmer’s office had asked last week for more time to ensure “an orderly transition during which some responsive measures can be placed under alternative executive authority and the Governor and Legislature can work to address many other pandemic-related matters.”

The 4-3 decision to deny this request “added an exclamation mark” to the court’s earlier ruling, says the Detroit Free Press.

Yet it means little in practical terms for Michigan residents, the paper points out, since “new emergency orders that the Whitmer administration has issued through the state health department director—which replicate mask requirements, restrictions on gathering sizes and restaurant capacity, among other features—are not affected by the court’s ruling.”

The same goes for another Monday ruling from Michigan’s Supreme Court, which rejected a lower court’s decision in support of the emergency orders. “The Emergency Powers of the Governor Act is incompatible with the Constitution of our state,” the state Supreme Court wrote in its decision on this case.

In Wisconsin, where Evers’ orders were challenged by three residents represented by the Wisconsin Institute for Law and Liberty (WILL), things went down differently.

The lawsuit argued that Evers “exceeded his statutory authority by declaring public health emergencies on three separate occasions, each related to the same health crisis—COVID-19,” explained St. Croix County Circuit Court Judge Michael Waterman in his decision. Wisconsin law “allows the governor to declare a public health emergency for up to 60 days, unless extended by the legislature,” he noted.

WILL argued that successive orders for the same public health emergency violated this limit.

The judge disagreed:

Nothing in the statute prohibits the governor from declaring successive states of emergency. Instead, the statute allows a declaration ‘if the governor determines that a public health emergency exists.’ That language gives the governor broad discretion to act whenever conditions in the state constitute a public health emergency. Although ‘the governor cannot rely on emergency powers indefinitely,’ … he can when a public health emergency exists and the legislature lets him do it.

“The legislature can end the state of emergency at anytime, but so far, it has declined to do so,” he added. “As the statewide representative body of the citizens of Wisconsin, the legislature’s inaction is relevant and it weighs against judicial intervention.”

Evers called the ruling “a victory in our fight against COVID-19 and our efforts to keep the people of Wisconsin safe and healthy during this unprecedented crisis.” WILL intends to appeal.


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About The Author

Elizabeth Nolan Brown

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com

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