The Imperial Legislature Loses Again

Wisconsin State Capitol. Photo by Dave Reid.

In the 2018 Wisconsin election Governor Scott Walker lost to Tony Evers and Attorney General Brad Schimel lost to Josh Kaul. In its subsequent “lame duck” session, after the November election but prior to Evers and Kaul taking office the following January, the state Legislature passed several laws giving legislative committees veto powers over actions by the executive.

The authors of the U.S. Constitution, and subsequently of the Wisconsin Constitution, feared that one person or group of people would gain control of all powers, legislative, executive, and judiciary. James Madison writing in The Federalist Papers, called this “the very definition of tyranny. … The preservation of liberty requires that the three great departments of power should be separate and distinct.”

To prevent this danger, the Wisconsin Constitution, like the U.S. Constitution, divides government into three separate branches, each vested with a specific power. The Legislature is vested with the legislative power, the power to make laws. The executive branch is vested with the power to implement, or “execute” the law. And the judiciary was given the power to interpret the laws and settle disputes.

Under the separation of powers doctrine, enacting new laws is deliberately made difficult. In Wisconsin a majority of both houses must vote in favor, called “bicameralism.” The bill is sent to the governor, called “presentment.” In the event that the governor vetoes the bill, it takes a super majority of both houses to override.

Under this doctrine, if legislators disagree with how the executive implements a law, their remedy is to pass a new law. This again requires that a majority of the Legislature vote for the change, subject to possible veto, as well as another vote to attempt a supermajority to overcome the governor’s veto. This process, of course, is far more difficult than allowing a committee of the Legislature to veto the executive’s implementation, as the current majority seeks to do.

The laws giving legislative committees veto power have now been successfully challenged in two cases leading to three decisions by the Wisconsin Supreme Court.

Tony Evers v. Howard Marklein was the first successful challenge to the Legislature’s attempt to insert its committees into the process of executing the law. Governor Evers challenged the constitutionality of several different provisions allowing legislative vetoes of executive actions. The Supreme Court accepted one issue: a section of state law that gave the Legislature’s Joint Committee on Finance a veto over conservation projects selected by the Department of Natural Resources under the Knowles Nelson Stewardship Program.

In a previous Data Wonk column, I describe this decision rejecting the committee’s ability to veto land purchases as “surprising,” not so much for its conclusion, but for the players. Six of the seven justices joined the majority decision, which was written by Justice Rebecca Bradley, usually the most doctrinaire conservative on the court. She wrote:

In this case, the court vindicates the constitution’s design by holding the legislature cannot take for itself the executive’s core function of executing the law, even if the executive at one time consented to the arrangement. The court’s decision in this case does not enhance executive power; rather, it returns the legislature to its constitutionally prescribed domain.

Despite the outcome, not all was sweetness and light among the justices. This is reflected in the mixture of dissents and concurrences. In her dissent, Justice Ziegler attacked the four justices in the majority, not for the substance of their decision, but for their political “pet issues.” She complained that:

This term, four members of the court have established a consistent record of handpicking and fast-tracking certain political “pet issues” such as redistricting, absentee voting, ballot box use, and abortion.

Meanwhile, Rebecca Bradley, despite writing the majority opinion, included a concurrence echoing Ziegler:

As Chief Justice Annette Kingsland Ziegler notes in her dissent, “we have no assurance that constitutional principles . . . will be equally applied, in the same manner, across the board, to the other branches in the future.”

Josh Kaul v. Wisconsin State Legislature was the second of three decisions focused on the ability of legislative committees to control actions of the executive, including the Attorney General and the Department of Justice (DOJ). Section 165.08(1) of the Wisconsin statutes, a product of the “lame duck” session, gave the Legislature’s Joint Finance Committee veto power over the decision by the Attorney General and DOJ to bring a lawsuit, as well as the final say over how to spend funds from state settlements:

Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under s. 803.09 (2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan. No proposed plan may be submitted to the joint committee on finance if the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization.

In June of 2021, Kaul challenged this requirement in Dane County Circuit Court. In two decisions in 2022, Judge Susan Crawford ruled against the Legislature, concluding that it was trying to insert its committees into a core executive process. (Judge Crawford was recently elected to the Wisconsin Supreme Court.)

The Legislature appealed Crawford’s decision to the Wisconsin Court of Appeals. A three-judge panel overruled Judge Crawford’s decision by a vote of two to one. In her dissent, Judge Lisa Neubauer dissented, writing:

Our constitution gives the legislature broad authority to implement its policy preferences and spend government money through its core power of enacting legislation. But … once the legislature passes a bill that is signed by the governor and becomes law … the legislature cannot insert itself into the machinery of the executive branch in an attempt to control the executive branch’s ability to carry out the law.

Later, Neubauer comments:

Instead of carefully patrolling the boundaries that separate the branches, the majority gives its imprimatur to legislative overreach that separation of powers principles exist to prevent.

On June 17 of this year, the Wisconsin Supreme Court issued a unanimous decision reversing the Court of Appeals, and written by Justice Brian Hagedorn. In its own way, this decision and its unanimity is as surprising as the first Evers v. Marklein decision. Unlike the earlier decision, there were no dissents or concurrences. Writing for a unanimous court, Hagedorn wrote:

As this court has explained over a series of cases, the Legislature’s constitutional responsibilities consist in making the law. Enforcing the law is a task vested in the executive branch.

As noted earlier, in Evers v. Marklein, Governor Evers challenged several laws that allowed legislative committees to veto actions by the executive. Initially, the court chose to pursue only one of these issues: a veto over conservation land purchases as part of the Knowles Nelson Stewardship program.

Following its decision on land purchases, the court took up another issue challenged in Evers v. Marklein: whether the laws establishing the ability of the Joint Committee for Review of Administrative Rules (JCRAR) to pause, object to, or suspend administrative rules for varying lengths of time, both before and after promulgation is unconstitutional. The majority decision was written by Justice Jill Karofsky, and joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Janet Protasiewicz.

The case involved proposed rules that the JCRAR committee blocked. The first was a proposed administrative rule from the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board banning conversion therapy aimed at changing a person’s sexual identity. The second was a proposed modernization of state building standards, that had come under heavy lobbying by business interests.

In its decision, the court majority relied heavily on the Wisconsin Constitution’s “bicameralism” and “presentment” requirements. These require any law to pass both houses of the Legislature and be presented to the Governor before it can take effect. Since the laws establishing the joint committee’s right to review proposed rules lacked a requirement for bicameralism and presentment, the court ruled them unconstitutional.

Justice Hagedorn’s opinion is described as “concurring in part and dissenting in part.” He argues that the majority could have achieved the same result with a more modest ruling, one limited to the specific details of this case. First, he notes that the proposed rule against conversion therapy is no longer suspended. “This claim is moot, and we have nothing further to decide.” (I checked. He is correct.)

He then argues that JCRAR’s objection to the building standards is unconstitutional under present standards because it did not include a time limit. Essentially, he is arguing that the court majority should have treated it as an as-applied challenge instead of a facial challenge.

Both Justices Ziegler and Rebecca Bradley filed dissenting opinions, in which they accused the majority of being motivated by partisan considerations. In their view, the majority favored the executive over the legislature because both the governor and the Attorney General are Democrats and the Legislature is controlled by Republicans.

In recent years, under Republican rule, the Wisconsin Legislature has been busy second guessing actions by the state’s executive authorities. If the Legislature doesn’t like how the laws are executed the answer is simple—pass a law that reflects what they want, rather than mucking around in executive processes. That, in essence, is what these two cases and three decisions by the high court have decreed.