Progressive-era Bureaucratic Power Returns to Wisconsin
We all knew this day was coming—
We all knew this day was coming—the day when the radical Wisconsin Supreme Court would transfer virtually all legislative prerogative to the state’s collectivist bureaucracy.
It’s been coming for a long time, really. The state’s transformation into some semblance of a functioning democracy from a bureaucratic collective only really achieved significant standing during Scott Walker’s tenure as governor, though lawmakers have complained about bureaucratic lawmaking since the progressive era ushered in that power—unconstitutionally—as early as 1905.
Notably, former Gov. Tommy Thompson advanced significant efforts to rein in bureaucratic lawlessness, working as a state lawmaker even before he was governor to give the legislature review authority over the bureaucratic rulemaking machine.
Mostly, though, attempts to rein in the unconstitutional lawmaking power of state agencies have failed, as Michael Duchek of the Legislative Reference Bureau has pointed out, such as a 1953 law to allow the legislature to disapprove of and void a rule by joint resolution, which was repealed in 1955 after being deemed unconstitutional. In 1992, Martinez v Department of Industry, Labor, and Human Relations allowed the legislative suspension of rules but also reinforced the underlying constitutional flaws of the progressive regime, giving judicial sanction to the idea of state government as a “cooperative venture” that effectively granted the administrative state co-equal status with other branches of government.
This most recent decision goes further. The majority not only overturned Martinez, it elevated the unelected bureaucracy over our elected representatives. No longer are they co-equal; the bureaucracy rules again, with its rules, and demolishes what was left of constitutional checks and balances. It might as well be 1925, not 2025.
It’s already been hard enough to rein in the powers of the unelected, but now, with the high court’s determination that, somehow, our elected representatives have no oversight of the state’s rule-making process, it’s virtually impossible to stop or police them. The high and haughty court majority has given state agencies a free pass to go rogue.
By statute, the legislature delegates authority to the administrative state to write rules to implement the laws the legislature makes, rules that themselves have the force and effect of law. By law, logic, and common sense, the rules must align with legislative intent. Of course, and this is what the progressive justices know, sometimes radical bureaucrats—OK, that’s redundant—write rules that are designed to undermine said legislative intent. This occurs especially when Republicans manage to get conservative laws enacted.
For years now, the legislature has had a remedy for that, namely, lawmakers review those rules to make sure it meets their intent. Before 2017, that process was mostly cosmetic, a passive process that made it extremely difficult to stop the bureaucratic collectivists from doing whatever they wanted, with the singular exception being if one party controlled both chambers of the legislature and the governorship.
It was Wisconsin’s progressive legacy, its totalitarian Idea, and many people had their lives torn apart because of it, especially during the tenure of Democrat Governor Jim Doyle.
Then, when Republican Scott Walker was governor, the legislature and the governor unshackled the legislature so that it could fulfill its constitutional responsibility to oversee the application of the legislative powers that it had delegated (even if the underlying delegation was unconstitutional). Major rules with high compliance costs could only be enacted if the legislature passed, and the governor signed, a bill allowing promulgation.
For major policy questions that did not carry exorbitant fiscal impact costs (but still carried deadly consequences for citizens), the legislature’s Joint Committee for the Review of Administrative Rules (JCRAR) could indefinitely object to the rule’s promulgation, by which the rule could not be promulgated until a bill authorizing promulgation was passed and enacted.
In other words, and this is a key point that the court majority ignored this week, because rules involve the creation and application of legislative power, a rule under indefinite objection could only take effect after it met the constitution’s bicameralism and presentment requirements, that is, it required a law passed by the legislature and signed by the governor.
In this decision, the majority slapped down the indefinite objection, somehow perversely finding that it instead failed the magic constitutional litmus test of bicameralism and presentment. While the majority applied those requirements to legislative review of a rule’s veracity, a mere prequel to implementation to allow checks and balances, it demanded no such constitutional obligation from the administrative state, which is actualizing real law.
It’s a sleight of hand, and, as a result, the legislature now has virtually no power to keep rules from being promulgated, even when they subvert the actual law or make new law. The bottom line is, the progressives on the court say it’s OK for the legislature to grant state agencies rule-making authority, but it’s not OK for the legislature to review the bureaucracy’s handiwork and require ratification that the use of that authority actually meets statutory intent.
It doesn’t make any sense constitutionally—as we shall see, it leads to absurd outcomes—and it doesn’t make any sense logically. Even so, for now what the bureaucrats want, the bureaucrats get, and these are rules, again, that have the force and effect of law.
Read more at The MacIver Institute …