In March 2020, Wisconsin Governor Tony Evers, like many governors in America, declared a “state of emergency” relating to COVID-19. Using his emergency powers, the governor’s office and his Department of Health Services issued sweeping orders that closed schools, restricted public gatherings, and suspended administrative rules. Under Wisconsin law, the state of emergency declaration lasted for 60 days, after which it expired on its own, unless an extension was approved by the legislature. But in July 2020, the governor, without legislative approval, issued a second state of emergency declaration, and then a third one in September 2020. 

Wisconsin citizen Jeré Fabick challenged the governor’s authority to keep Wisconsin in a state of emergency without legislative approval. Pandemic Powers: Wisconsin’s State of Emergency, is the latest documentary from FedSoc Films. The movie tracks Mr. Fabick’s lawsuit against Governor Evers from the initial filing directly with the Wisconsin Supreme Court, through the Court’s 4-3 decision on March 31, 2021, declaring the governor had violated the emergency powers statute. 

The film features interviews with Mr. Fabick, his attorney, Matthew Fernholz, and attorney Lester Pines. 

Matthew Fernholz says this about the case: 

As COVID-19 recedes into the rearview mirror, we can objectively and dispassionately assess the responses to the pandemic by the federal, state, and local governments. At the time Fabick v. Evers was argued and decided in late 2020 through early 2021, the media coverage focused obsessively over the issue of masks. But the Fabick case was about a much bigger question than whether masks were an effective tool for stopping the spread of COVID. The issue in the case was whether the governor could keep Wisconsin in a “state of emergency” when the emergency powers statute was clear that he needed approval from the legislature to declare a second state of emergency. The governor never received that approval. In fact, the legislature even rescinded the state of emergency, but the governor ignored that decision and declared another state of emergency. 

The decision by the Wisconsin Supreme Court in Fabick was a victory for the rule of law and the separation of powers. Mr. Fabick’s case ensures that future governors—regardless of party and regardless of the reason—must comply with the limits placed on them by the emergency powers statute and must seek approval from the legislature to extend a state of emergency declaration. It is also a lesson that private citizens play an important role in holding the government accountable. 

Lester Pines had this to say: 

The film about Fabick v Evers, which determined that multiple states of emergency issued by Wisconsin’s governor in response to the COVID-19 pandemic exceeded his statutory powers and were unlawful, is excellent. The court’s decision caused emotional public reactions. The film presents opposing views on the case through succinct, informed, and courteous comments. It is a model for how controversial issues can and should be presented to the bar and the public.

In the Wisconsin Supreme Court’s decision in Fabick v Evers, the court bent the accepted rules of standing in Wisconsin into an unrecognizable shape so that it could reach the merits of a declaratory judgment case in which the plaintiff had suffered absolutely no injury. The decision to do so was the expression by the four-judge majority of a political ideology, which is now morphing into a legal doctrine, that the “administrative state” or the executive branch of government through its control of administrative agencies, is destroying the public’s liberty through excessive regulation and must be severely limited and controlled by the courts. That ideology was spread by misinformation provided to at least two generations of lawyers, judges, and politicians through a process that was financed and promoted by multi-millionaires, billionaires, highly profitable corporations, and foundations funded by them. The result is that we now have sitting judges and justices who will ignore or bend long-standing precedent to make decisions that will suppress executive and administrative power to allow wealthy interests the freedom to increase their profits by continuing to despoil the environment, ignore science, suppress labor, and limit the protections afforded by government to the least powerful citizens of our country.  In other words, we are watching the clock being turned back to the Lochner era.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.