Wisconsin high court hands win to governor in separation of powers deadlock

MADISON, Wis. (CN) — The Wisconsin Supreme Court ruled  in favor of the state’s governor ** in a dispute over whether the Legislature can block rules enacted by the state’s executive agencies.

The ruling declared that five statutes enacted by the state’s Legislature “facially violates the Wisconsin Constitution’s bicameralism and presentment requirements.”

The statutes allowed the state Joint Committee for Review of Administrative Rule, known as JCRAR, veto power over executive branch rules without a bill being presented by the Legislature.

The opinion, written by Chief Justice Jill Karofsky, relies on a 1983 U.S. Supreme Court ruling in Immigration and Naturalization Service v. Chadha , which determined that when legislative actions alters the legal rights and duties of others outside the legislative branch, it requires a bill to be passed and for it to be sent to the executive branch.

The case represents an ongoing feud between Democratic Wisconsin Governor Tony Evers and the state’s Republican-controlled Legislature.

Evers sued the Legislature in 2023 over a handful of statutes granting various legislative committees veto power over a number of expenditures and rules by the state Department of Natural Resources, Department of Safety and Professional Services and the University of Wisconsin.

Republican majorities in the state House and Senate have used that power to block several executive actions, including the acquisition of land by the DNR and pay raises for public university employees.

Speaker Robin Vos said at the time that he planned to hold up statutory pay raises for about 35,500 University of Wisconsin System employees until the university either cuts its positions dedicated to diversity, equity and inclusion or gives up its authority to create new positions altogether.

Evers, joined by the administrative departments affected by the vetoes, filed suit in October 2023 against a group of legislators, including Vos.

In 2024, the court ruled 6-1 in Evers’ favor, stating that the statute blocking the governor from spending funds that the Legislature had previously approved was unconstitutional.

“Maintaining the separation of powers between the branches is essential for the preservation of liberty and a government accountable to the people. By placing the power of the executive branch to carry out the law in a committee of the Legislature, the legislative branch subsumed the executive power,” Justice Rebecca Grassl Bradley wrote for the majority.

The court heard an appeal in May, which led to today’s opinion, after the Legislature took a second shot at trying to usurp the governor’s power by giving JCRAR veto power over executive branch rules.

The committee used its new veto power to block a rule that allowed the Wisconsin Department of Safety and Professional Services to update commercial building standards while also blocking an update to professional ethics standards for therapists and social workers, which regarded “conversion therapy” techniques as unethical.

The committee called the therapy veto temporary, but the Legislature failed to pass a bill to support it.

Evers argued in his brief before the court that the committee has effectively taken over the Legislature’s right to pass a bill, which then must be sent to the governor for approval.

The committee also intrudes on the executive branch’s authority, added Evers’ counsel, Wisconsin Assistant Attorney General Charlotte Gibson, highlighting that if the Legislature previously granted his office rulemaking authority for one of the executive’s agencies, that agency then has the power to carry out the Legislature’s wishes.

“Even if rulemaking were instead viewed as a shared power, the Legislature still cannot act through a committee outside its lawmaking function, and it cannot block the executive branch from acting. That is exactly what JCRAR’s vetoes do,” Gibson wrote.

In response, Republican legislatures claim that Evers is asking the court to “upend retroactively decades of the Legislature’s broad delegation of legislative rulemaking authority to administrative agencies.”

Legislatures relied on the court’s previous ruling in a 2020 case, which found that when an agency makes a rule, it’s exercising legislative power and therefore subordinate to the Legislature.

In that case, the court applied a 1992 ruling, Martinez v. DILHR , finding that JCRAR’s suspension power is delegated to it by legislative standards.

However, today’s ruling overturns Martinez v DILHR , with the majority saying it is “unsound in principle because it misapplied our constitution.”

The Martinez  opinion allowed for a three-month rule suspension without addressing why a temporary suspension without passing a bill and sending it to the governor was “constitutionally firm,” wrote Karofsky.

The court also made a mistake thinking that there were “‘sufficient procedural safeguards’ to ensure constitutional adherence in rulemaking,” Karofsky wrote.

The court should have treated “constitutional adherence itself as the principle procedural safeguard,” according to the majority.

The court also overturned a 2020 ruling in SEIU v. Vos, * which relied on Martinez * to determine that a multiple suspension provision “passes constitutional muster.”

“It would be a grave affront to the separation of powers and interbranch comity for this court now to overturn Martinez and invalidate the crucial JCRAR oversight upon which the Legislature relied, while otherwise leaving those delegations of legislative power to administrative agencies in place,” wrote the Legislature’s counsel, Mishae Tseytlin of Troutman Pepper, in her brief before the court.

However, the court made clear in Tuesday’s opinion that the Legislature alone has the power to amend the rulemaking process.

“The Legislature created the current process. It alone maintains the ability to amend, expand, or limit the breadth of administrative rulemaking in the other branches — as long as it adheres to the constitution, including the provisions of bicameralism and presentment,” Karofsky wrote.

Justices Ann Bradley, Rebecca Dallet and Janet Protasiewicz all joined the chief justice’s opinion. Justice Brian Hagedorn filed an opinion concurring in part and dissenting in part. Justices Annette Ziegler and Rebecca Bradley each wrote dissenting opinions.