WILL Budget Explainer: The Administrative State
“Governor Evers’ budget is a liberal-wish list on a number of levels, but an undertold story is how it would strengthen the executive branch, usurping power from the legislature."
The News: Last week, Governor Tony Evers released his 2019-2021 budget. WILL Deputy Counsel Lucas Vebber has analyzed the impact of his budget on state agencies and the regulatory state and found it would transform the administrative state, giving more power to unelected bureaucrats.
Background: In recent years, Wisconsin has enacted a bold regulatory reform agenda designed to increase transparency, restrain the power of unelected bureaucrats, and increase the oversight capabilities of lawmakers. Wisconsin truly led the nation in these forward-thinking reforms which include eliminating implied agency authority, passing the nation’s first REINS act, and bringing an end to agency deference.
WILL’s Take: WILL Deputy Counsel and Director of Regulatory Reform Lucas Vebber said, “Governor Evers’ budget is a liberal-wish list on a number of levels, but an undertold story is how it would strengthen the executive branch, usurping power from the legislature. It’s ironic that he calls his budget “the people’s budget” when he is empowering unelected bureaucrats to make laws with less input from the public and democratically-elected legislature.”
Dive Deeper: Relating to regulations and the administrative state, Governor Evers’ proposes the following:
1.) Less transparency in agency decision-making
Background: Agencies use “guidance documents” to help direct internal staff on how to apply laws and regulations. Guidance documents do not have the force of law, but because they’re used by agency staff they play a critical role in the regulatory process. The public has an interest in ensuring that these documents are not actually illegally issued rules in violation of Chapter 227 of the statutes.
Governor’s Budget: The Governor’s budget repeals the requirements to publish guidance documents, accept public comments, and keep documents posted on agency websites. It also eliminates the requirement that agency heads certify that guidance documents comply with Chapter 227.
WILL’s Take: Evers seeks to repeal good government transparency measures. These measures help the regulated community and the general public better understand how government operates, and help guarantee that agencies are only acting within their proper statutory and administrative authority.
2.) Bringing back “Sue and Settle”
Background: Notorious during the Obama Administration, special interest groups and willing government agencies often engage in a process known as “sue and settle.” When this occurs, the special interest will sue the agency seeking a regulatory change, the agency will agree to the change, and then a court signs off on a settlement agreement mandating the change.
In Wisconsin, a settlement agreement, consent decree, or court order cannot confer any rulemaking authority upon an agency, and agencies are prohibited from agreeing to promulgate rules unless the agency has explicit statutory authority to promulgate the rule – thus preventing most of the harm that can come from the “sue and settle” process.
Governor’s Budget: The Governor’s budget proposes to repeal these statutory prohibitions, which would return Wisconsin back to a time of “sue and settle” regulations.
WILL’s Take: This process is an end-run around the legislature’s authority to delegate regulatory power to agencies. Repealing these prohibitions would allow special interest groups to legally bind state agencies to engage in rulemaking that state law may not otherwise allow.
3.) Ceding state power to the federal government
Background: Many federal laws impose requirements upon states. States often have to submit “implementation plans” to the federal government showing how the states intend to comply.
Wisconsin law, generally, requires that in order for a state agency to act, it must have state authority. State law also explicitly provides that federal plans do not confer rulemaking authority, and that no state agency may agree to promulgate a rule as part of a federal implementation plan unless they have explicit statutory authority to do so.
Governor’s Budget: The Governor’s budget proposes the repeal of these statutory prohibitions on what can and cannot be included in a federal implementation plan.
WILL’s Take: State agencies do not get their authority from the federal government, they get it from the people of Wisconsin. This proposal from the Governor cedes some control of state agencies to the federal government.
4.) Creating uncertainty over agency deference in interpretations of law.
Background: Traditionally, when a term in a statute or a regulation was ambiguous, a court would defer to the government agency’s interpretation of such a term when deciding on the case. This tips the scale of justice to the government in disputes between the people and agencies.
Last year the Wisconsin Supreme Court held that courts will no longer defer to agency interpretations of laws. The Legislature followed that up by specifically providing that no agency may seek deference on an interpretation of law, and further, that courts shall accord no deference to an agency’s interpretation of law.
Governor’s Budget: The Governor’s budget proposes a repeal of these statutory provisions, but not make additional changes – presumably leaving in place the Wisconsin Supreme Court’s previous holding that it would not give great weight deference to agency decisions.
WILL’s Take: These statutory provisions, that the Governor is seeking to remove, help level the playing field and ensure that courts determine what laws mean, not government bureaucrats. Repealing these provisions will do nothing except create additional uncertainty, especially in light of the Wisconsin Supreme Court’s holding last year.
More about the 2019-2021 Wisconsin Budget
- Evers Budgets $78 Million for High Speed Internet - Danielle Kaeding - Mar 14th, 2019
- Evers Wants $2.5 Billion Capital Budget - Shawn Johnson - Mar 11th, 2019
- The Medical College of Wisconsin Applauds Governor Evers Commitment to Cancer Research - Medical College of Wisconsin - Mar 8th, 2019
- Evers Budget Overlooks Convention Center - Corri Hess - Mar 8th, 2019
- School Leaders Back Evers Funding Plan - John Davis - Mar 7th, 2019
- WILL Budget Explainer: The Administrative State - Wisconsin Institute for Law & Liberty - Mar 7th, 2019
- Governor Evers Makes Historic Investments in Health Care Coverage and Access - Wisconsin Department of Health Services - Mar 6th, 2019
- Evers’ Budget Allows Immigrants In-State Tuition - Phoebe Petrovic - Mar 6th, 2019
- Murphy’s Law: Who Will Win State Budget Battle? - Bruce Murphy - Mar 5th, 2019
- The State of Politics: Governor’s Veto Power Looms Large - Steven Walters - Mar 4th, 2019
- Rural and Urban School Districts Express Support for Governor Evers’ Budget - Milwaukee Public Schools - Mar 1st, 2019
- Governor Evers Budget Prioritizes Real People Living Real Lives - Wisconsin Alliance for Women’s Health - Mar 1st, 2019
- Coalition for More Responsible Transportation Members Applaud Gov. Evers’ Proposed Transportation Budget - Coalition for More Responsible Transportation - Mar 1st, 2019
- Senate Majority Leader Scott Fitzgerald Responds to Governor Evers’ Budget Address - Senate Majority Leader Scott Fitzgerald - Feb 28th, 2019
- Rep. Considine Statement on Governor’s Budget - State Rep. Dave Considine - Feb 28th, 2019
- Senator Craig Responds to Governor Evers’ Budget Address - State Sen. David Craig - Feb 28th, 2019
- Rep. Shankland Commends Governor Evers on The People’s Budget - State Rep. Katrina Shankland - Feb 28th, 2019
- Rep. Robyn Vining Cheers The People’s Budget - State Rep. Robyn Vining - Feb 28th, 2019
- Milwaukee Area Labor Council Reaction State Budget - Milwaukee Area Labor Council - Feb 28th, 2019
- Statement from Rep. Brostoff in Support of Gov. Evers’ Redistricting Plan - State Rep. Jonathan Brostoff - Feb 28th, 2019
- The People’s Budget is a Win for Wisconsin - State Sen. Jennifer Shilling - Feb 28th, 2019
- Rep. Mark Spreitzer Applauds Gov. Evers’s Budget Address - State Rep. Mark Spreitzer - Feb 28th, 2019
- Gov. Tony Evers’ Budget Plan: Progress on Solutions for Student Loan Borrowers and Protections for Wisconsin Voter Rights - One Wisconsin Now - Feb 28th, 2019
- Governor Evers Gives 2019-21 Biennial Budget Address - Gov. Tony Evers - Feb 28th, 2019
- MacIver Responds To Reporters Being Barred From Evers Budget Briefing - MacIver Institute - Feb 28th, 2019
- AFP-WI: Evers Education Budget Doesn’t Prioritize Student Success - AFP Wisconsin - Feb 28th, 2019
- Evers’ Budget Will Include Nonpartisan Redistricting Process - Shawn Johnson - Feb 27th, 2019
- Representative Subeck Applauds Governor Evers’ Plan to Ensure Fair Election Maps - State Rep. Lisa Subeck - Feb 26th, 2019
- Rep. Robyn Vining Embraces Gov. Evers’ Inclusion of Redistricting in Budget - State Rep. Robyn Vining - Feb 26th, 2019
- Gov. Evers Announces Tribal Initiatives in State Budget - Gov. Tony Evers - Feb 26th, 2019
- Governor Evers’ Budget Targets School Choice: What You Need to Know - Wisconsin Institute for Law & Liberty - Feb 25th, 2019
- The State of Politics: 10 Issues to Watch in Evers Budget - Steven Walters - Feb 25th, 2019
- Evers Signals Gas Tax In His Budget - Danielle Kaeding - Feb 13th, 2019
- Evers Budget Will ‘Put Kids First’ - Shawn Johnson - Jan 30th, 2019
- Evers Wants Voucher Costs on Tax Bills - Shawn Johnson - Jan 3rd, 2019
Recent Press Releases by Wisconsin Institute for Law & Liberty
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