On May 1, protesters were circling the Wisconsin state Capitol, denouncing regulatory overreach by the state Department of Health Services response to COVID-19. Meanwhile, less than a block away, Attorney General Josh Kaul was pulling another thread in his attempt to unravel reforms that have made Wisconsin’s administrative state the most transparent and accountable in the nation.
When Gov. Scott Walker swept into office in 2011 along with conservative majorities in both houses of the Wisconsin legislature, one of his first official acts was to call a special session to reform how the state did business. The media focused mostly on Walker’s collective bargaining changes in Act 10. But a bill with far more consequential effects on daily life, Act 21, became law around the same time.
Act 21 reined in Wisconsin’s administrative state after a full century of expansion. Though the executive and legislative branches had been guilty of concentrating too much power in the bureaucracy, the administrative state had also taken more authority than elected officials had, in fact, delegated. This power grab has been aided and abetted by state courts.
For example, in what should seem like a clear-cut delegation of power, the legislature authorized a Wisconsin agency to require sprinkler systems in buildings with “more than 20” apartments. However, based on a misguided doctrine of implied authority, the agency implemented rules requiring all buildings with more than eight apartments to have sprinkler systems. Wisconsin courts agreed that the phrase “more than 20” in the law actually meant “more than eight” because of broad and irrelevant language in the law’s preamble.
In this fashion, agencies would routinely “imply” their way to additional regulatory authority.
Walker worked with the Wisconsin legislature to abolish the doctrine of “express and necessarily implied” authority from Wisconsin. In a single sentence, Act 21 prohibited agencies from creating or enforcing any regulatory requirement not “explicitly” permitted by statute or rule.
This small change was ingenious. It rolled back all of the implied regulatory authority that state agencies had been wielding over Wisconsinites since the progressive era in the early 1900s.
When agency staff tried to defang the legislation by drafting it with the word “express” instead of “explicit,” so as to protect broad agency authority, state Rep. (and now congressman-elect) Tom Tiffany proposed the amendment to change it back, arguing that “the courts have interpreted expressly very broadly, and in order for our legislation that comes out of this body today to reflect the intent that we want … it was important to change the word to explicitly.”
Even after the bill had been passed and signed into law, agencies continued their rule-making overreach. To counter this, in 2016, Attorney General Brad Schimel issued a comprehensive legal analysis of Act 21, affirming that general language does not implicitly convey rule-making authority. In other words, agencies must follow the law as written instead of dreaming up powers they wish they had.
Since 2016, several cases have been filed, relying in part on this attorney general opinion or using a similar legal analysis. At least three are currently pending before the Wisconsin Supreme Court. But now, Attorney General Kaul, Schimel’s Democratic successor, representing Democratic Governor Tony Evers’s administration in each of these cases, is essentially arguing that the important part of Act 21 is meaningless.
Kaul withdrew Schimel’s opinion just a few weeks ago, then argued before the state Supreme Court that, in spite of Act 21, Wisconsin’s Department of Health Services has almost unlimited regulatory authority.
Kaul’s action will only generate regulatory confusion. Agency staff previously constrained by the Schimel opinion will now push out expansive mandates, untethered from state law. And that may well be Kaul’s intention: To persuade the court that the unreformed status quo of the previous 100 years — the all-encompassing embrace of the administrative state — is the more familiar and safer path to take.
In a time of crisis, clearly defined limits on the powers of unelected officials are more important than ever. The attorney general’s office should be a protector of liberty for Wisconsinites, not the handmaiden of unelected bureaucrats seeking to expand state power beyond their lawful authority.
Corydon Fish is general counsel for Wisconsin Manufacturers & Commerce, the state chamber of commerce, and manufacturers association.
