Another win for human rights in Wisconsin!
State laws that let a 10-member committee of the Legislature override regulations are unconstitutional, a majority of the Wisconsin Supreme Court ruled Tuesday.
The ruling hands the administration of Democratic Gov. Tony Evers a victory in an ongoing battle with the Legislature’s Republican leaders.
It also affirms that the state Legislature cannot renew its attempt to block regulations against conversion therapy for LGBTQ people, and appears to clear the way for an update of Wisconsin’s building code that was suspended nearly two years ago.
The ruling finds five statutes, granting power to the Legislature’s committee that reviews and periodically suspends administrative rules, violate the Wisconsin Constitution.
Taken together, wrote Chief Justice Jill Karofsky for the four justices making up the Court’s liberal wing, the statutes give the Joint Committee for the Review of Administrative Rules the power to effectively change state laws without going through the full legislative process.
“The ability of a ten-person committee to halt or interrupt the passage of a rule, which would ordinarily be required to be presented to the governor as a bill [to block the rule], is simply incompatible with Articles IV and V of the Wisconsin Constitution,” Karofsky wrote.
The Court’s three conservative justices took issue with the majority opinion, asserting that rulemaking itself involves legislative power and that Tuesday’s ruling improperly constrains the Legislature as the elected representatives of the people.
The decision is the second to come from a lawsuit Evers filed in the fall of 2023, Evers v. Marklein, accusing the Republican leaders of the Legislature of exercising an unconstitutional “legislative veto” hampering the lawful powers of the executive branch to make administrative rules.
The Evers administration argued that five statutes granting JCRAR the power to review, object to and block rules before or after they are promulgated violate the state Constitution. Those include a law enacted in December 2018, after Evers was elected governor but before he took office, that allows the committee to lodge “indefinite” objections blocking a rule.
The Court majority agreed with the administration’s argument.
The Wisconsin Constitution requires that for a law to be enacted, it must pass both the Assembly and the Senate and then be presented to the governor to be signed or vetoed.
“By permitting JCRAR to exercise discretion over which approved rules may be promulgated and which may not, the statute empowers JCRAR to take action that alters the legal rights and duties of persons outside of the legislative branch” without going through the lawmaking process, Karofsky wrote.
The indefinite objection “prevents the agency from promulgating a rule unless the Legislature passes a bill enacting the rule,” she wrote. “Said another way, legislative inertia after an indefinite objection could permanently stop the promulgation of a rule.”
The law allowing the committee to pause a rule for 30 days before it is promulgated “essentially allows JCRAR to capture control of agency rulemaking authority from the executive branch during the 30-day pause period,” Karofksy wrote.
The pause, which can be extended to 30 days “operates as a ‘pocket veto,’” she wrote. “Even if such an interruption is relatively brief, the constitution does not contemplate temporary violations of its provisions.”
Similarly, after the rule has been promulgated, JCRAR’s power to suspend it multiple times “means that even after promulgation, JCRAR could suspend a rule repeatedly in perpetuity with no other checks in place,” the chief justice wrote.
Thanks to Mousebumples for keeping us informed about Wisconsin.
Totally open thread.
Wisconsin Is A Reminder of Why We Should Never Give upPost + Comments (60)
