Wisconsin Supreme Court Hears Lawsuit Over Legislature’s Authority

The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court heard oral arguments Wednesday in Gov. Tony Evers’ lawsuit against Republican legislative committee leaders’ power to veto executive actions.

The case centers around the Joint Committee on Finance’s authority to stop the spending of funds through the Knowles-Nelson Stewardship Program, a grant program that allows the Department of Natural Resources to purchase land for conservation purposes. Under current law, one member of the committee — Republicans make up 12 of the 16 members — can place an anonymous hold on any proposed use of the grant funds of more than $250,000. Once a hold is placed, the committee as a whole must vote to release the funds.

The program has historically enjoyed bipartisan support, but in recent years, the committee has more regularly used its authority to block the use of stewardship funds. Republican Sen. Mary Felzkowski (R-Irma) prevented state funds from being used for the Pelican River Forest conservation project, which is the largest land conservation effort in state history.

If Evers’ lawsuit is successful, it could drastically reshape the balance of power in Wisconsin’s state government, including hundreds of legislative vetoes of executive actions outside of the stewardship funds. For example, the Joint Committee on Employee Relations recently held up pay raises for thousands of university system employees that had already been approved through the normal budget process.

Evers’ initial lawsuit asked the Court to invalidate state laws that gave legislative committees the authority to veto measures already passed through the normal legislative or budget processes, but the Court chose to only consider the question of conservation projects. Despite the narrow focus of the Court, if it decides in Evers’ favor, the decision could upend the rules that guide other legislative committees.

Throughout the arguments, the justices attempted to get attorneys for both sides to provide some sort of “limiting principle” to their arguments over which branch of government should have the authority to make certain policy decisions.

Department of Justice attorney Colin Roth and Erin Deeley, an attorney for the land conservation organization Gathering Waters, which has intervened in the case, argued on Wednesday that the statutory set-up that allows these types of legislative vetoes is unique to Wisconsin and that it represents a twisting of the Constitution’s separation of powers principle as the Legislature attempts to claim more power for itself.

“The Legislature, when it passes a law, especially one like Knowles-Nelson, it’s then the executive’s job to carry it out,” Roth said. “I think if you try to start searching for a limiting principle that has no support in the constitutional text, you’re in very dangerous waters, because I think as we found with these veto provisions is you give the Legislature an inch and they take a mile, any limiting principle they will push as far as they can, as you’ve seen today. There are over 100 JCF veto provisions alone, and that doesn’t count other committees.”

But throughout the arguments, the Court’s conservatives questioned how the Constitution bars the Legislature from enacting laws with these types of veto provisions yet allows the executive branch to effectively make laws through the administrative rulemaking process.

“I’m having a hard time understanding the logic of your argument where you’re asking us to curtail legislative power in this one context, but rulemaking is OK,” Justice Rebecca Bradley said. “Why is it OK for the executive to exercise legislative power? … When administrative agencies promulgate rules, they are exercising legislative power that the Legislature has chosen to delegate them by statute. That’s what the Legislature has done in this context as well. It’s delegated its legislative power to a committee. So how can we have a holding that’s limited to the legislative veto power and it doesn’t extend to the administrative state?”

Misha Tseytlin, the attorney for the Republican lawmakers, argued that this structure is how Wisconsin’s state government has operated for nearly a century and for the Court to declare that unconstitutional now would upend the functioning of the government. Tseytlin said the requested solution is a “revolution they would have this court unleash.”

“The modern administrative state has has very serious problems under one view of the original public meaning of the Constitution,” Tseytlin said. “But once we’re past that bridge, you can’t have a wooden, hermetically sealed separation of powers that only benefits one branch. If the Court — and it has since the 1920s, the beginning of the administrative state — has blessed the Legislature giving over some of its legislative power to the executive branch in view of the realities of modern governance, you then can’t take away the practical tools that the legislative branch needs…”

But Justice Jill Karofsky questioned the practicality of those tools. Asking if the legislative veto is a reasonable statutory construction, she pointed to the fact that it is allowed to go on indefinitely, is not required to rely on other statutes, is not required to include any reasoning and isn’t appealable or reviewable.

“I just don’t see any accountability whatsoever,” Karofsky said.

Tseytlin raised the point that if the committee doesn’t have the authority to stop Knowles-Nelson projects certain members don’t like, it’s likely that when the program is up for reauthorization in 2026, the Legislature won’t reauthorize the program and land conservation purchases would be done through piecemeal individual legislative acts, which he said conservation groups such as Gathering Waters would also oppose.

But Justice Brian Hagedorn said that sounded to him like governing according to what the Constitution allows.

Eliminating the anonymous committee veto “requires the Legislature to govern,” Hagedorn said.

“The Legislature pretty clearly doesn’t want the executive branch to have broad authority to spend whatever it wants over $250,000, and the answer is it won’t give it if it doesn’t have that [veto power],” Hagedorn added. “So there’s gonna have to be some governing according to the process of enacting laws and executing laws. Isn’t that kind of what the Constitution envisions?”

Wisconsin Supreme Court hears arguments in lawsuit against legislative veto of stewardship funds was originally published by Wisconsin Examiner.