(MacIver Institute) -- A Miscalculation by Gov. Evers could bring the state’s bureaucracy crashing down.
Aided by a liberal majority on the state supreme court, Evers has waged an unrelenting legal campaign against the legislature to strip it of its constitutional authorities. First, he took away its authority to draw voting maps, and then he eroded its power of the purse. Now, Evers doesn’t think the legislature should get a say in what rules and regulations his bureaucrats write.
For the past 70 years, lawmakers have preferred to write laws in broad strokes, leaving the details up to the bureaucrats to figure out. Those bureaucrats produce what’s called “administrative rules.” Those rules have to go back to the legislature for review and approval before they go into effect. Evers says that violates the principle of separation of powers, and he’s suing the legislature to end the practice.
The Wisconsin Supreme Court heard the case on Thursday, Jan. 16th. It is immediately obvious to everyone there that there is nothing in the state constitution that authorizes bureaucrats to write rules and regulations. Justice Brian Hagedorn described the arrangement as a “gentlemen’s agreement” between the governor and the legislature to allow the practice until now. Justice Rebecca Bradley added that there’s nothing in the state constitution that allows the legislature to transfer its lawmaking authority to the executive branch.
The implications of this realization are explosive. The legislature’s attorney said if the justices decide to stop the practice of legislature review and approval, then “the administrative state’s got to go.” The most likely way that will occur is through the budgeting process. If the justices decide to go back to the original intent of the Constitution, then the entire bureaucratic system will collapse.
The defense attorney described how this dilemma played out in the US Supreme Court. Justice Scalia concluded that the bureaucracy might be unconstitutional, but he didn’t want to bring down the entire government by ruling that.
The case might not be decided for several weeks, but the implications of it existing are immediate. Proposed administrative rules are already starting to pile up, and the legislature has no immediate plans to review or approve any of them. It would be foolish of lawmakers to do so until they know the outcome of the case.
The outcome will also impact how lawmakers write bills. If the court sides with Evers, lawmakers will no longer be able to include language like "Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute.” Instead, lawmakers will have to spell out every detail.
If the court rules with Evers, lawmakers will also have to take a radically different approach to the state budget. They will essentially have to slash and burn anything that enables the bureaucracy to write and enforce new rules and regulations. As the defense stated, “the administrative state’s got to go.”
William Osmulski
About the Author: William Osmulski is the Content Director for the John K. MacIver Institute specializing in transportation, public finance, and property taxes.
Disclaimer: The views and opinions expressed in this article do not necessarily reflect the views of the publisher, its employees, or any other affiliated organization.
Last Update: Feb 28, 2025 12:29 pm CST
