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Column | To mask, or not to mask; that is not the question

By Dan Kontos

First, I must start out by apologizing for stealing the famous line penned by William Shakespeare in his work Hamlet for the title of my column. This sort of cultural appropriation cannot go unpunished by the progressive cancel culture militants, so I have preemptively chastised myself. 

There. After all, Shakespeare was an Englishman, and Hamlet was a Dane. I am of Greek decent, and certainly cannot just steal these cultural treasures for my own use. Therefore, as punishment, no tequila for me, until Cinco de Mayo. Now that this is out of the way, we can continue.

I must confess my utter disappointment in many local media sources, as well as our local governmental officials as they report and comment on the recent ruling by the Wisconsin Supreme Court in Fabick v. Evers. The near-universal commentary is that the Court struck down Governor Tony Evers’s “mask mandate.”

I’m not here today to discuss the efficacy of wearing a mask to stop virus transmissions. Nor am I intending on launching into an honest examination of “the science,” a term that all too many have appropriated for themselves, not unlike what I did with the title of this column. I want people to understand what the Court did, and why it’s important.

On March 31, the Supreme Court finally released its ruling on the lawsuit in which they exercised original jurisdiction over last year. The question was not whether mandating the wearing of masks was appropriate in fighting the coronavirus, it was whether the affable Gov. Tony Evers was within his legal authority to extend this mandate beyond 60 days without legislative concurrence.

It had nothing to do with masks, per se. Here is why that distinction is so important.

So many large and national media outlets framed this as a debate over public health and safety. Most regional and local media outlets glommed onto this storyline and mindlessly regurgitated it. Local governmental officials were all too quick to agree and spin the decision so that the facts became lost in the messaging.

No wonder all too many of my neighbors and friends have become convinced that this is a battle over face coverings. The truth is much more significant than that.

You see, government is intended to be restrained by our Constitutions. On occasion, laws are created that bump up against our basic civil liberties and freedoms, such as the emergency declaration provision in Wisconsin’s statutes. We, as a people, have decided that under extreme circumstances government must be allowed some limited extraordinary authority to quickly control unforeseen calamities that befall our state.

Section 323.10 of the Wisconsin statutes says that “…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… A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature…”

That is the law; clear and unambiguous, so you would think.

When COVID struck Wisconsin, Evers declared a public health emergency, as was his best judgment at the time, knowing what he did at that moment. It was plainly within his authority to do so. Governors actually issue emergency declarations fairly frequently. Flooding, fires, agricultural emergencies, and other situations are dealt with by the state quickly through the issuing of these executive orders.

When the first public health emergency order expired, and the governor perceived that an emergency condition still existed, he simply reissued another order and circumvented the legislature by not seeking their concurrence.

Thus, the built-in check in the system to prevent unbridled executive power was ignored. Why? Simple, the governor and majority of the Legislature were of different political parties. Rather than work through the problem right away, Evers never engaged lawmakers in the next logical step.

The effete state Legislature then failed to act by using its authority under section 323.10, where the law provided that, “…The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.” No such resolution came, and the Governor pressed on with what he saw as the proper course of action. Both sides were incorrect and bear some of the blame.

As a matter of law, Tony Evers exceeded his authority, and as a matter of duty, the legislature abdicated theirs. While under new leadership after the elections, the Legislature did later revoke a subsequent executive order in January, but the Governor simply issued another within the hour. The Legislature then did nothing, and the constitutional crisis continued.

After months, the Wisconsin Supreme Court finally decided the issue. The majority opinion was written by Justice Brian Hagedorn. “The question, in this case, is not whether the Governor acted wisely; it is whether he acted lawfully,” the ruling said. “We conclude he did not.”

Nothing there about the validity of face coverings. It was always about the rule of law. Those who tell you otherwise are either ignorant of the facts, or purposefully trying to deceive you. I thought you needed to know the truth.

Justice Rebecca Bradley summed it up well, when she stated, “While a pandemic will not follow the laws of men, the Governor must.”

More troubling was the justification offered by the three activist justices who said in a dissent written by Justice Ann Walsh Bradley, that they were willing to ignore the plain letter of the law in order to push their own political policy preferences. The appropriate role of a judge is to decide whether a governmental action is lawful and constitutional, with a keen eye on protecting any individual rights that may be infringed upon. The efficacy of any governmental policy is inherently subjective and best left to the political branches of government. Elections, you see, have consequences.

No government, of any political persuasion, should be allowed unbridled power to unilaterally act unchecked for indefinite periods of time, simply because they declare an emergency.

One governor could decide that gun violence is a public health emergency, and order the confiscation of all guns. Another can declare a literacy emergency, and order that all public schools that fail state testing thresholds be closed and their funding go to student vouchers. You can see how this can quickly spiral out of control.

Maintaining a watch over our government requires leaders who are educated and honest and a media who does their homework and presents facts and the unvarnished truth. We as a society must demand this, and act accordingly. 

So, with that, let’s meet in the opinion section to talk about all of it, boldly, unafraid, and with a healthy respect for each other. Until then, God bless.

Dan Kontos is a paid columnist for the Metro Wire. He chooses his own topics and his opinions do not necessarily represent the staff of the Metro Wire. He lives with his family in Whiting. 

Interested in becoming a columnist for the Metro Wire? Email [email protected]

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