Another political battle between the Wisconsin Legislature and Gov. Tony Evers is brewing in the badger state after Evers’s Department of Health Services Secretary-Designee Andrea Palm issued a new shutdown order limiting public gatherings to a maximum of 10 individuals and reducing the capacity of businesses to 25%.
This order came as a shock to many because it contradicts a state Supreme Court decision from May and is a reversal from just last week when Evers stated he does not have the legal authority to reduce business occupancy. This latest order is part of a disturbing trend of governors and their appointees in the administrative state flouting the rule of law and the input of coequal branches of government. This trend has only gotten worse during the pandemic. Fortunately, the Wisconsin Legislature has pushed back against this latest act of executive overreach. Other state legislatures should follow Wisconsin’s lead and give themselves the tools necessary to effectively oversee their administrative states.
After the Wisconsin Supreme Court ruled in May that Evers and his regulatory agencies have limited authority to act unilaterally through executive and emergency orders, Evers throughout the summer smartly avoided unilateral action and relied on his bully pulpit to encourage businesses and individuals to take commonsense measures to moderate the spread of COVID-19. However, in the last month, Evers once more began to issue new orders and invade the legislature’s lawmaking powers, culminating in last week’s announcement to again limit in-person gatherings and business capacity statewide. Readopting this go-it-alone approach by rolling out a new order likely violates recent Wisconsin Supreme Court precedent, damages main street businesses (it is estimated up to 50% of Wisconsin restaurants may go out of business because of this order), and takes away people’s liberty in the process.
In the May case Legislature v. Palm, the court struck down Evers’s “safer at home” emergency order. The legislature argued, and the court agreed, that the emergency order requiring Wisconsinites to shelter in place both exceeded the legal authority the legislature delegated to DHS and violated the procedures put in place for the legislature to maintain oversight of its delegated authority. This case is historic because it eliminated the doctrine of “express and implied authority.” In other words, it eliminated agencies’ ability to imply more regulatory authority from statutes than the legislature explicitly provided. This outcome was only possible thanks to a series of legislative reforms reining in agency authority. Those laws and this decision affirm a path forward for state legislatures across the nation to police the administrative state and take back control over much of the power they have given away to administrative agencies since the New Deal era.
On Monday, the Wisconsin Legislature’s Joint Committee for Review of Administrative Rules stopped DHS’s legally dubious attempt to implement the order. The committee, using its authority under Wisconsin’s Administrative Procedures Act, required DHS to go through the rule-making process prior to implementation. The legislature will have several opportunities to shape the rule during this process and can ultimately suspend enforcement of the rule if lawmakers do not like the final version, effectively forcing DHS and the governor to work collaboratively with them. This ensures elected officials, not bureaucrats, make law and policy decisions.
This reassertion of power is not a knee-jerk partisan reaction to having a Republican-controlled legislature and Democratic governor. Rather, it is the culmination of a decade long project to ensure that legislators, the elected officials closest to the people, oversee law and policy creation in Wisconsin instead of bureaucrats. This action, and others like it, will force the governor to work collaboratively with the legislature instead of ignoring them when inconvenient.
Other state legislatures would be wise to follow Wisconsin’s lead reasserting control over the administrative apparatuses they created. Legislatures can do this by implementing a few key reforms.
First, they should ensure that delegations of legislative authority to agencies are narrow and constrained to the plain language in the text of the law. Agencies should not be able to “imply” all their powers from the text (the norm in almost every state).
Second, they should ensure the legislature plays a substantial role in overseeing even the most narrow delegation of legislative power by creating substantive oversight mechanisms in their rule-making process.
Third, they should make sure the legislature can challenge agency actions that exceed legislative delegations in the courts by passing legislation giving them legal standing to litigate such cases.
Fourth, they should eliminate judicial deference to agency decisions so that the legislature and any other litigants have a level playing field when challenging an agency action in court.
These policies may sound small, but, as Wisconsin has shown, they make all the difference when determining whether agency bureaucrats or elected officials make the law. Elected officials making law (and overseeing agencies as they implement the law) is always important, but it is never more important than when unelected bureaucrats use an emergency as an excuse to accumulate more control over businesses and individuals.
Corydon Fish is the general counsel at Wisconsin Manufacturers & Commerce, the state chamber of commerce and manufacturers association. The views contained in this article are his own and do not reflect the views of his employer.
