Decision neutering lawmakers’ power to block agency rules means administrative state takes precedence over elected officials
A state Supreme Court decision wresting rulemaking authority from elected state representatives has opened the door to a barrage of new regulations and fees in Wisconsin.
In a bitterly split ruling in Evers v. Marklein on July 8, the court handed regulatory oversight to the governor and the many departments his administration oversees. The majority neutered the Joint Committee for Review of Administrative Rules, a committee created in bipartisan spirit 59 years ago to act as a clearinghouse for the growing regulatory state.
The decision is a bellwether in the state court’s hard progressive shift after the election of Justice Janet Protasiewicz in 2023 ended 15 years of conservative sway.
In the latest case, conservative justices in their dissents questioned whether the ruling was constitutional and blasted the majority for its transparent politicking.
“Nowhere in the constitution did the people of Wisconsin consent to be governed by rules imposed by the administrative state rather than laws passed by their elected representatives,” Justice Rebecca Bradley wrote in her dissent.
State Rep. Adam Neylon, co-chair of the Administrative Rules Committee, told the Badger Institute that committee leadership was shell-shocked by the ruling. The decision reordered the process of creating or reviewing all state agencies’ rules, including those that create or add to fees, so that everything runs through the executive branch, which oversees a dozen departments that charge fees and create other rules. Some fees are established by statute, some by the departments themselves.
The court ruling might also signal doom for four pending rules reform bills, one of them authored by Neylon, R-Pewaukee, and his co-chair, state Sen. Steve Nass, R-Whitewater. Those four bills are packaged as Wisconsin’s Red Tape Reset.
Even if all the bills pass, Neylon said, Gov. Tony Evers, whose lawsuit aimed to change the balance of power in administrative rulemaking, will almost certainly veto all of them.
“I deeply value checks and balances and the system has worked pretty well in the past,” Neylon said. “But you have a governor, frustrated by not being able to get his agenda past the Legislature, with a new avenue with no legislative oversight. Don’t think the governor, who has surrounded himself with all these political people, isn’t going to use rulemaking to push his political agenda.”
In her ruling for the majority, Chief Justice Jill Karofsky provided a thumbnail history of the Administrative Rules Committee and the expansion of its authority.
The Legislature created a bipartisan committee of Assembly members and senators in 1966 under Republican Gov. Warren Knowles, when Republicans controlled the state Senate and Democrats controlled the Assembly.
State law defines an administrative rule as “a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.”
In 1979, under Republican Gov. Lee Dreyfus, Democrats in the majority in both chambers agreed to allow the rules committee to object to a rule before it went through the process of being codified.
But in 2017, Karofsky wrote, Republican majorities in both chambers granted the committee authority to object to a rule indefinitely, an authority approved by Republican Gov. Scott Walker. Only a law passed by both chambers could overrule a committee’s rules objection.
In addition, the Legislature passed laws confining rules or regulations to those “explicitly permitted or required under state law,” and it also passed the REINS Act, which requires legislative approval for any rules costing $10 million over a two-year period to implement and comply with.
The differences in rulemaking philosophies by political parties in the past generation are stark. In 2009-10, the first time in decades Democrats controlled the executive and legislative branches, the Legislature approved 274 permanent rules, a then-record high 151 of them in 2010, according to a study by the University of Wisconsin’s Center for Research on the Wisconsin Economy, or CROWE.
The number of permanent rules approved dropped to 108 in 2010-11, the first two years of Walker’s terms as governor. And despite the legal changes in 2017, the average number of rules approved averaged about 80 before spiking to 166 in 2019, Walker’s last year in office, according to the study.
After 110 new rules in 2021, the Legislature’s number of approvals dropped from 88 to 75 and just 21 last year, the study said.
Evers’ original lawsuit, filed in October 2023, was an expression of frustration with Republican control of three legislative committees in blocking elements of his agenda. The state Supreme Court chose to opine on only two cases involving the Joint Committee for Review of Administrative Rules.
While much of the media attention has focused on the committee’s suspension for three years of an examining board rule on a controversial conversion therapy, a careful reading of Karofsky shows the majority’s attention clearly fixed on the Administrative Rules Committee’s ability to smother rules.
The majority concluded that the Rules Committee violated the state constitution because the institution sidestepped a process of bicameralism — passage of legislation through both legislative chambers — and of presentment, which is the presentation of that passed legislation to the governor for signing.
To reach that opinion, the majority decided that two past state high court rulings, in Martinez v. DILHR in 1992 and Service Employees International Union Local 1 v. Vos in 2020, were wrong about the purpose and evolution of the Administrative Rules Committee.
Instead, the court substituted reasoning drawn from a U.S. Supreme Court case from 1983, INS v. Chadha, 462 U.S. 919, that struck down a one-chamber veto because it didn’t follow bicameralism and presentment.
Not surprisingly, this was precisely the same argument Evers made in his lawsuit.
Curiously, the majority notes, “Before concluding, we note that the Legislature retains power over the administrative rulemaking process regardless of our determination here. The Legislature created the current process.”
Nothing could be further from the truth, Scott Manley said. Manley, executive vice president of government relations for Wisconsin Manufacturers and Commerce, is well aware of the burdens of overregulation on businesses in the state.
“There is no grand strategy here, just a power grab,” Manley told the Badger Institute. “Essentially, you’ve created an unelected and unaccountable body” — bureaucrats — “protected by civil service laws. They have completely taken the Legislature out of the process.”
Neylon said there are at least two cases of rule and fee changes in the very early stages coming before the rules committee. One involving the Department of Natural Resources could result in an expensive fee hike for residents, he said without getting into detail. No other agency between 2011 and 2021 saw more of its rules, 134, become permanent than the DNR, according to the CROWE study.
“I’d expect to see more of this,” Neylon said. “What’s the incentive for an agency to come to the table? We can’t object, and if we pass a law to block a rule, the governor can veto it.”
The Badger Institute contacted the authors of the Red Tape Reset bills. They insist the package of bills was wholly unrelated to the court case.
State Rep. Ron Tusler, R-Harrison, a co-author and, coincidentally, the chair of the Assembly Judiciary Committee, said that even in a politicized environment legislators are a bit dumbstruck by a party claiming to value democracy taking elected officials out of the rulemaking process.
Another of the package’s co-authors, Amanda Nedweski, R-Pleasant Prairie, said she isn’t so sure allowing a Democrat governor to consolidate power isn’t short-sighted. Having redone the state district maps, it’s a good bet that within a couple of election cycles Democrats could control both chambers of the Legislature, she said.
And, as they have done in the past, it’s possible state voters could elect a Republican governor.
“Now your Supreme Court just gave that Republican governor unchecked power,” Nedweski said. “If I were a Democrat lawmaker, I would be outraged by this ruling, too.
“Regardless of whether you’re a Republican or Democrat, everyone should be alarmed when one branch of government consolidates power at the expense of another.”
Mark Lisheron is the Managing Editor of the Badger Institute.
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