Activity in the Capitol related to the COVID-19 Pandemic
Today the Wisconsin State Assembly met and resumed their Thursday January 28th session calendar, which was recessed last week, to pass Assembly Bill 1 (AB 1-the COVID-19 Pandemic Response Bill) and Senate Joint Resolution 3 (SJR 3-terminating Governor Evers’ Executive Order #104).
The Assembly previously did not act on SJR 3 and AB 1 on January 28th because a memo from the Legislative Fiscal Bureau revealed that in order for Wisconsin FoodShare recipients to receive the additional emergency allotment benefits allowed during the pandemic, totaling over $49 million, the state has to have an issued emergency or disaster declaration. SJR 3, which the Assembly was ready to act on, declares that the public health emergency declared by the governor in Executive Order #104 on January 19, 2021, in response to the COVID-19 coronavirus, is unlawful and would be terminated by the joint resolution. The termination of the public health emergency applies to all actions of the governor and all emergency orders (including Emergency Order #1-Requiring Face Coverings) issued pursuant to the declaration of the public health emergency. Because SJR 3 would end Wisconsin’s public health emergency, the memo stated Wisconsin FoodShare recipients wouldn’t be eligible for the additional benefits.
To address this, the Assembly today passed an amendment to AB 1 that would ensure, if concurred in by the Senate and signed into law, that the state is still able to receive any additional emergency benefit allotments granted by the federal government, including those for the FoodShare recipients, that require the state to have an issued emergency or disaster declaration. The amendment, excerpted below, states that the governor may issue a subsequent executive order declaring a public health emergency related to the COVID-19 pandemic solely for the purpose of receiving emergency or other allotments under any of the previous or subsequent federal laws related to the COVID-19 pandemic enacted before July 1, 2022.
1g) PUBLIC HEALTH EMERGENCY DECLARATION. Notwithstanding the expiration or termination of a public health emergency by the legislature by joint resolution or by the governor, the governor may issue a subsequent executive order under s. 323.10 declaring a public health emergency related to the COVID-19 pandemic solely for the purpose of receiving emergency or other allotments under the federal Coronavirus Preparedness and Response Act of 2020; the Families First Coronavirus Response Act of 2020; the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020; the Paycheck Protection Program and Health Care Enhancement Act of 2020; the Consolidated Appropriations Act, 2021; or any subsequent federal law related to the COVID-19 pandemic enacted before July 1, 2022. The governor may issue this executive order only if the receipt of the allotments requires an active state-declared emergency or disaster. The governor may not exercise any other emergency powers during a public health emergency declared under this subsection, including powers specified under s. 323.12 (4), except that the governor may order into state active duty members of the national guard under s. 321.39 and may approve plans developed by the adjutant general under s. 323.13.
The amendment passed on a party-line 59-35 vote and the bill was concurred in as amended on a 59-35 vote and messaged back to the State Senate. The remainder of the provisions that previously passed the State Senate and State Assembly were not changed and remained in the bill (link to Legislative Council Memo summary of previous amendment activity).
Senate Majority Leader Devin LeMahieu (R-Oostburg) announced that the Senate will meet in Extraordinary Session on Friday to concur in the Assembly amended bill and send AB 1 to the Governor.
The timing of the Senate action is important because the State Assembly also passed SJR 3, terminating EO #104, the public health emergency declared by the governor on January 19th, 2021.
SJR 3 passed on a vote 52 to 42. 7 Republicans joined the Democrats in voting against the resolution. Republicans voting no were Representative Joel Kitchens (R-Sturgeon Bay), Jeff Mursau (R-Crivitz), Todd Novak (R-Dodgeville), Loren Oldenburg (R-Virocqua), Jessie Rodriguez (R-Franklin), David Steffen (R-Howard) and Ron Tusler (R-Harrison). The northeastern lawmakers (Tusler, Mursau, Kitchens and Steffen) noted in a joint letter that they voted no because they believed it was the job of the Supreme Court to determine if the Governor’s emergency order extensions were illegal and they were also concerned about potentially jeopardizing federal funding without a public health emergency in place. Rep. Rodriguez noted that she was concerned the mixed messages ending the public health emergency was sending to her constituents about the Legislature’s response to the pandemic.
Following the Assembly vote, Speaker Vos and Majority Leader LeMahieu released a joint statement:
“Governor Evers has abused his limited authority for far too long by repeatedly issuing unlawful orders beyond his 60-day emergency powers. The Assembly and Senate voted to end the executive overreach and restore our constituents’ voice in the legislative process.
“The Resolution will take effect upon joint signature of the presiding officers of both chambers. The Resolution will be signed on Friday.”
The resolution ending the public health emergency will take effect on Friday when signed by the leaders of both houses.
Without the public health emergency in place, the Republican-controlled Legislature is counting on Governor Evers to sign AB 1 and issue a public health emergency order granted by the legislation “solely for the purpose of receiving emergency funds or allotments from the federal government.”
In a statement, Majority Leader LeMahieu noted that in order to meet the requirement to receive enhanced federal Pandemic Unemployment Assistance benefits, the provisions of AB 1 must be signed into law prior to the deadline of Sunday, February 7th.
“Tomorrow, the Senate will meet in Extraordinary Session to concur in the Assembly amendment to AB 1, sending a unified Coronavirus Relief Bill to the Governor’s desk for signature. This is a true consensus bill and we expect a quick signature to preserve the enhanced federal UI benefits which will expire Sunday without this law change.”
Face covering requirement status
As mentioned above, the passage of SJR 3 will also end EO #1 related to the face covering requirement. In advance of the action today, Assembly Republicans sent a letter to Governor Evers asking him to submit rules to the Legislature that would do the following as it relates to a proposed rule requiring face coverings;
- Enact reasonable masking requirements in places in Wisconsin that are susceptible to transmission of the virus to those who are especially vulnerable, such as health care facilities, nursing homes, mass transit, state government buildings, assisted living facilities, public schools, universities, and prisons.
- Allow any private or public entity in the state that would like to require face masking to be allowed to do so on their property.
- Require the Department of Health Services to pay for COVID-19 tests that anyone may take, free of charge, paid for by the state of Wisconsin.
- The rules would be in place and reviewed by JCRAR every 30 days for any necessary modifications and would stay in place until a majority of eligible Wisconsinites are voluntarily vaccinated.
The letter also noted the Assembly’s intent to act quickly on rules that the Governor submits to the Legislature.
However, according to the spokesperson for Co-Chair of the Joint Committee for the Review of Administrative Rules, the committee that oversees the rule-making process, Sen. Steve Nass (R-Whitewater), Sen. Nass isn’t where the Assembly is at on a proposed face-covering rule. In a statement that was tweeted out by a capitol reporter, the spokesperson was quoted as saying;
“He [Sen. Nass] doesn’t support the efforts of Assembly Republicans to join with Governor Evers to enact a mask mandate that could lead to people being fined and/or arrested.”
Following the Assembly session ranking member of the Assembly Health Committee Lisa Subeck (D-Madison), released the following statement:
“The fact of the matter is that masks save lives and that the lives of Wisconsinites are far less safe today because Republicans chose their political games and extreme ideology over prioritizing the health and wellbeing of our constituents. More people wearing masks translates to fewer infections, hospitalizations, and deaths from this highly contagious virus.
A statewide mask requirement has widespread support, and we all want to open schools, visit our friends, and hug our parents. At a time when we have begun vaccination and can see an end to the pandemic in reach, it is shameful that the Republicans’ action today will unnecessarily delay getting back to our Wisconsin way of life.
Republicans have been spinning their wheels for weeks to repeal Governor Evers’s mask requirement while simultaneously claiming that their resolution is not about masks. We aren’t buying it. The vote taken today by Assembly Republicans is either about repealing the mask requirements – which is cruel and callous in and of itself – or Republicans were willing to take an action so uncaring and unkind that they put their contempt for the governor and their desire for absolute power ahead of the health and economic stability of our communities and our state.”
The State Senate is scheduled to convene in extraordinary session tomorrow, Friday February 5th at 11:00 AM to concur in AB 1.
Governor Evers issues new public health emergency order
Following the action of the State Assembly today and in advance of the legislative leaders signing Senate Joint Resolution 3 (ending Executive Order #104) tomorrow and the Senate concurring in Assembly Bill 1 (the COVID-19 Pandemic Response bill), Governor Tony Evers in a press release announced that he signed Executive Order #105 and Emergency Order #1 establishing a statewide public health emergency and requiring face coverings in public places. These orders supersede the orders that were set to be repealed by the Legislature tomorrow when SJR 3 was signed by the Legislative leaders.
Executive Order #105 , is a similar in text to EO #104, but notes in its “Where As” clauses the presence of the more contagious strains of the coronavirus now present in Wisconsin and neighboring states as well as the federal funding that could be in jeopardy if the state does not have an existing public health emergency declaration. Similarly the new Emergency Order #1 , face covering requirement, is nearly identical to the previous EO#1 under EO #104, and also contains the new language regarding the more contagious strains.
Governor Evers also released a video message criticizing the Legislature’s actions and reiterating his support for the mask requirement.
Assembly Majority Leader Jim Steineke (R-Kaukauna) released a statement following the Governor’s announcement:
“Yet again, Governor Evers pushes away an olive branch to reach common goals, instead opting for continued authoritarian rule. I’m disappointed that the Governor would rather continue issuing orders that he knows to be illegal as opposed to working with the legislature to keep Wisconsinites safe.”
Senator Steve Nass (R-Whitewater), who authored Senate Joint Resolution 3, issued a statement following Governor Evers’ announcement:
“Tony Evers is now an openly lawless governor clearly in violation of his oath of office and his duty to comply with the rule of law. Despite the policy disagreements over emergency declarations and mask orders that exist between the governor and legislature, we are once again in a constitutional crisis in Wisconsin because Tony Evers willfully refuses to comply with state law.
The legislature properly invoked state law and passed SJR 3 ending Evers emergency declaration issued in January. The rule of law and the Wisconsin Constitution require Evers to recognize the legislature ended his emergency powers. Instead Tony Evers now acts no differently than a dictator in control of a banana republic.
I will be immediately drafting another senate joint resolution to end the Evers Emergency Declaration issued on February 4, 2021. I will also be calling on senate leadership to consider filing for an emergency action in the Wisconsin Supreme Court.”
Below is the statute in question that authorizes the Governor to make an emergency declaration and the Republicans argue limits the duration of that emergency to 60 days unless extended by a joint resolution of the Legislature.
POWERS AND DUTIES RELATED TO EMERGENCY MANAGEMENT
323.10 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. https://docs.legis.wisconsin.gov/statutes/statutes/323/ii/10