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“(Republicans) have the power to overturn the order by joint resolution and they refuse to do it.”

true true

Gov. Tony Evers speaks during a media briefing on the coronavirus pandemic. File photo

Yes, Republicans could end Evers’ state of emergency anytime

If Your Time is short

  • Republicans are again blasting Evers after he declared his third state of emergency  of the pandemic, extending the mask mandate.

  • But state law lets the Legislature end any emergency order with a simple majority vote, and Republicans control both the Senate and the Assembly.

  • The Senate leader has said he has the votes to defeat an emergency order, but Assembly Speaker Robin Vos has chosen not to convene his branch.

The latest state of emergency declared by Gov. Tony Evers — his third since the start of the coronavirus pandemic — elicited the expected reaction from Republicans.

The latest order extended the state’s mask mandate, which was set to expire Sept. 30, for an additional two months.

An avalanche of GOP news releases and social media posts condemned Evers, a Democrat, calling the order "illegal," "unconstitutional," an "overreach" and a "power grab." Assembly Speaker Robin Vos, R-Rochester,  called it "rule by fiat" and said there would "undoubtedly be additional court challenges" — on top of the court challenges to previous orders.

But one Wisconsin Democrat says Vos has no reason to wait on court challenges.

"Whenever you see a WI Republican bemoan the Governor's mask mandate, remember these 2 things," state Sen. Chris Larson of Milwaukee said Sept. 23, 2020 on Twitter. "1) They have the power to overturn the order by joint resolution and they refuse to do it. 2) They sued to have control over our #COVID19 response months ago, and have done nothing."

We’re focusing on the first point. It’s an overlooked element of the partisan showdown over Wisconsin’s coronavirus response.

And Larson is exactly right. Republicans could end Evers’ order any time, if they got a majority vote in the chambers they control.

Let’s review what's going on.

The state of emergency statute

State law first gave the governor authority to declare a state of emergency in 1951, though that was related only to acts of war. The circumstances in which an emergency may be declared and the governor’s powers in that scenario have evolved since, including the addition of public health emergencies in 2002.

The only prior public health emergency in state history came in 2009, when Democratic Gov. Jim Doyle issued Executive Order #280 in response to H1N1 (swine flu), according to the Wisconsin Legislative Reference Bureau. 

The section of statute Evers relied on for his three orders isn’t a long one, so here’s the whole thing. We’ve bolded the key element at the end:

Declaration by governor. The governor may issue an executive order declaring a state of emergency for the state or any portion of the state if he or she determines that an emergency resulting from a disaster or the imminent threat of a disaster exists. If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. If the governor determines that the emergency is related to computer or telecommunication systems, he or she may designate the department of administration as the lead agency to respond to that emergency. A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. A copy of the executive order shall be filed with the secretary of state. The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.

So, revoking the order is a pretty straightforward process. And one way to do it is a joint resolution approved by both houses. What’s more, unlike traditional legislation it is not subject to the governor’s veto — a simple majority is enough.

The status of the Legislature

Republicans hold a commanding majority in both houses. The advantage is 18-13 in the Senate and 63-34 in the Assembly (with two vacant seats in each chamber).

Senate Majority Leader Scott Fitzgerald said back in July that Senate Republicans had the votes and "stand ready" to overturn the first emergency declaration and mask mandate.

That put the onus on Vos, who said in his Sept. 22, 2020, statement, "No one branch of government can rule outside the letter of the law and go unchecked, even during a pandemic." But Vos has not taken action to be that check.

It’s unclear whether Assembly Republicans are fractured on the issue, or if other political considerations are at play — such as not wanting to put members on record with a vote in the midst of a volatile election year. A Vos spokeswoman did not respond to a request for comment.

State Sen. Steve Nass, R-Whitewater, even issued a statement criticizing the inaction of Vos and others in his party, saying Vos "has enabled the continuing illegal conduct of Governor Evers in issuing repeated emergency declarations and a failed statewide mask mandate." 

Our ruling

Larson said in a tweet that the Republicans who control the Legislature "have the power to overturn the order by joint resolution and they refuse to do it."

That’s correct. Republicans have the majority in both houses and the power under state statute. Whatever the reason, they have not acted to end the governor’s state of emergency and accompanying mask mandate.

We rate this claim True.

Chris Larson, tweet, Sept. 23, 2020

Email exchange with Justin Bielinski, spokesman for Sen. Chris Larson, Sept. 23, 2020

Wisconsin state statutes, 323.10, enacted Oct. 6, 2009

Milwaukee Journal Sentinel, Opposition to Tony Evers' mask mandate rises as Senate leader threatens to block it, sheriffs say they won't enforce, July 31, 2020

Steve Nass, Sen. Nass: Calls for immediate session of the Legislature to stop Gov. Evers, Sept. 22, 2020

Email exchange with Madeline Kasper, legislative analyst with the Wisconsin Legislative Reference Bureau, Sept. 24, 2020

Wisconsin Legislature, 2001 Wisconsin Act 109, enacted July 26, 2002

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