Tony Evers Governor of Wisconsin, Department of Natural Resources, Board of Regents of the University of Wisconsin System, Department of Safety and Professional Services and Marriage and Family Therapy Board Professional Counseling and Social Work Examining Board v. Senator Howard Marklein, Representative Mark Born in their official capacities as chairs of the joint committee on finance, Senator Chris Kapenga, Representative Robin Vos in their official capacities as chairs of the joint committee on employment relations, Senator Steve Nass and Representative Adam Neylon in their official capacities as co-chairs of the joint committee for review of administrative rules
2023AP2020-OA
SUPREME COURT OF WISCONSIN
July 5, 2024
2024 WI 31
ORIGINAL ACTION
Oral Argument: April 17,
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, HAGEDORN, KAROFSKY, and PROTASWIECZ, JJ., joined. ANN WALSH BRADLEY, J., filed a concurring opinion, in which DALLET and PROTASWIECZ, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY, KAROFSKY, and PROTASWIECZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Charlotte Gibson, assistant attorney general, Colin T. Roth, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Colin T. Roth, assistant attorney general.
For the intervenor-petitioner, there were briefs filed by Erin K. Deeley, Jeffrey A. Mandell, Rachel E. Snyder, Carly Gerads, and Stafford Rosenbaum LLP, Madison. There was an oral argument by Erin K. Deeley.
For the respondents and intervenor-respondent, there was a brief filed by Misha Tseytlin, Sean T.H. Dutton, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago, IL. There was an oral argument by Misha Tseytlin.
An amicus curiae brief was filed by Evan Feinauer, Brett Korte, David Tipson, and Clean Wisconsin, Madison, on behalf of Clean Wisconsin.
An amicus curiae brief was filed by Chris Donahoe, Daniel S. Lenz, T.R. Edwards, and Law Forward, Inc., Madison, on behalf of Former Wisconsin Judges.
An amicus curiae brief was filed by Tony Wilkin Gibart, Robert D. Lee, and Midwest Environmental Advocates, Madison, on behalf of Save our Water and Wisconsin Conservation Voters.
An amicus curiae brief was filed by Bryna Godar, Miriam Seifter, and State Democracy Research Initiative, University of Wisconsin Law School, Madison, on behalf of Legal Scholars.
An amicus curiae brief was filed by Richard M. Esenberg, Lucas T. Vebber, Skylar Croy, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee, on behalf of Wisconsin Institute for Law & Liberty, Inc.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
FILED
JUL 5, 2024
Samuel A. Christensen Clerk of Supreme Court
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, HAGEDORN, KAROFSKY, and PROTASWIECZ, JJ., joined. ANN WALSH BRADLEY, J., filed a concurring opinion, in which DALLET and PROTASWIECZ, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY, KAROFSKY, and PROTASWIECZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion.
ORIGINAL ACTION. Rights declared.
¶2 In this case, the petitioners1 claim the legislature has impermissibly intruded upon the executive branch‘s core power to
execute the law by authorizing a legislative committee to halt expenditures for land conservation measures after the legislature already appropriated the money through the budget process. The legislative respondents2 defend the statutes based on the legislature‘s interest in overseeing the executive branch‘s expenditure of state funds. We hold that
I. BACKGROUND
¶3 In 1989, the legislature created the Knowles-Nelson Stewardship Program (“the Program“) “to acquire land to expand nature-based outdoor recreational opportunities and protect environmentally sensitive areas.” Eric Helper, Warren Knowles-Gaylord Nelson Stewardship Program, Wis. Legis. Fiscal Bureau, Informational Paper #66, 1 (Jan. 2023); 1989 Wis. Act 31, § 650fq. The Program allows the Department of Natural Resources (“DNR“) to
purchase land or disburse state funds to local governments and nonprofit organizations to acquire land for nature-based outdoor recreation. Land acquired under the Program must remain accessible to the public unless public safety or environmental concerns counsel against public access.
¶5 In October 2023, the governor filed an original action petition with this court raising three separate but related issues regarding the exercise of legislative review procedures over
executive branch actions.4 We granted review solely with respect to the legislative review provisions governing the Program and held the other two issues in abeyance pending the resolution of this issue.
¶6 The petitioners challenge the constitutionality of
over a 14-day period and the JFC can temporarily block the expenditure of the funds by the executive branch until the committee holds a meeting on the proposed project. If a meeting is requested by a member of the JFC, the DNR cannot obligate the funds for the project until the committee approves the expenditure. Nothing within the statutory review provisions mandates when the committee must hold a meeting on the expenditure. After a meeting is held, the JFC votes on whether to allow the specific expenditure by the DNR. The JFC‘s decision is not subject to a vote of the full legislature.
¶7 Subsection (8)(g)3. operates in the same way as subsection (6m) but applies to land acquisition projects “outside of a project boundary” regardless of the amount of the expenditure. Under this subsection, the DNR cannot obligate money for a land acquisition “outside of a project boundary” unless 12 members of the JFC “approve the land acquisition.”
II. STANDARD OF REVIEW
¶8 The petitioners assert the statutes permitting the JFC to review certain expenditures under the Program are facially unconstitutional because they violate the separation of powers embedded in the
making a facial challenge, petitioners “face a tall task.” Serv. Emps. Int‘l Union, Loc. 1 v. Vos, 2020 WI 67, ¶14, 393 Wis. 2d 38, 946 N.W.2d 35 (“SEIU“). “[T]he challenging party must show that the statute cannot be enforced ‘under any circumstances.‘” Id., ¶38 (quoted source omitted). The facial challenge to the statutes in this case presents issues of constitutional and statutory interpretation, which are questions of law this court reviews de novo. League of Women Voters of Wis. v. Evers, 2019 WI 75, ¶13, 387 Wis. 2d 511, 929 N.W.2d 209 (citing Milwaukee J. Sentinel v. DOA, 2009 WI 79, ¶14, 319 Wis. 2d 439, 768 N.W.2d 700).
III. ANALYSIS
¶9 Mirroring the
judicial power of this state shall be vested in a unified court system.”
¶10 Historically, we have recognized “core powers” of each branch and “shared powers” between the branches. SEIU, 393 Wis. 2d 38, ¶35. “Core powers,” we have said, “are not for sharing.” Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶147, 382 Wis. 2d 496, 914 N.W.2d 21 (lead opinion). “There are zones of authority constitutionally established for each branch of government upon which
¶11 In contrast, shared powers “lie at the intersections of the[] exclusive core constitutional powers.” Gabler, 376 Wis. 2d 147, ¶34 (quoting State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999)). Incapable of precise classification, shared powers have been described as “twilight zones” and “ambiguous territory in which the functions of two branches . . . overlap.” Holmes, 106 Wis. 2d at 43-44. For example, we have “acknowledged that some legislative actions affecting the courts do not contravene the separation of powers.” Gabler, 376 Wis. 2d 147, ¶35. Identifying the core powers of the legislature and the executive branch facilitates our review of the challenged statutes under a separation of powers analysis.
¶12
by the constitution of the United States. The legislature, subject to a qualified veto of the executive, possesses all the legislative power of the state.” Bushnell v. Town of Beloit, 10 Wis. 155 [*195], 168-69 [*225] (1860).
¶13 The procedural requirements of bicameralism and presentment temper the expansive authority vested in the legislative branch to make policy decisions for the state. For a bill to be enacted into law it must pass through both the assembly and the senate and then be presented to the governor for his approval or veto.
¶14 Determinations of how to appropriate the state‘s funds fall squarely within the legislative power. The legislature derives its spending power from
provision, combined with
¶15
Id., ¶99. An early case of the Wisconsin Supreme Court expounded the powers of the executive branch: “whatever power or duty is expressly given to, or imposed upon the executive department, is altogether free from the interference of the other branches of the government. Especially is this the case, where the subject is committed to the discretion of the chief executive officer, either by the constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise.” Att‘y Gen. ex rel. Taylor v. Brown, 1 Wis. 422 [513*], 449 [522*] (1853).
¶16 In executing the law, the executive branch must make decisions about how to enforce and effectuate the laws. The text of the statutes enacted by the legislature limits the exercise of executive discretion. Fabick v. Evers, 2021 WI 28, ¶14, 396 Wis. 2d 231, 956 N.W.2d 856 (“[I]f the governor has authority to exercise certain expanded powers not provided in our constitution, it must be because the legislature has enacted a law that passes constitutional muster and gives the governor that authority.“). Put simply, “the legislature‘s authority comprises the power to make the law, whereas the executive‘s authority consists of executing the law. The distinction between the two has been described as the difference between the power to prescribe and the power to put something into effect[.]” SEIU, 393 Wis. 2d 38, ¶95. Neither the legislature nor the executive “ought to possess directly or indirectly, an overruling influence over the other[] in the administration of their respective powers.” The Federalist No. 48, supra, at 332 (James Madison).
¶18 The constitutional text belies this argument. “No money shall be paid out of the treasury except in pursuance of an appropriation by law.”
within the core power of the executive to ensure the laws are faithfully executed.
¶19 We conclude these statutes interfere with the executive branch‘s core function to carry out the law by permitting a legislative committee, rather than an executive branch agency, to make spending decisions for which the legislature has already appropriated funds and defined the parameters by which those funds may be spent. A statute authorizing the legislative branch to exercise core powers of the executive branch violates the constitutional separation of powers and cannot be enforced under any circumstances. The legislative review provisions governing expenditures under the Program in
¶20 Although the legislature retains the authority to conduct oversight investigations11 and audits of administrative agencies,12 empowering a legislative committee to block the expenditure of appropriated funds exceeds the legislative power and intrudes upon the executive branch‘s authority to execute the law. Once the legislature appropriates funds for a particular purpose, the executive branch possesses the power to dole out those
funds in accordance with the purposes outlined by the legislature. See Frank H. Easterbrook, “Success” and the Judicial Power, 65 Ind. L.J. 277, 281 (1990) (“[H]anding out public money is a classically executive function.“). While the legislature‘s motivation for overseeing the public
¶21 When the executive branch acts under a grant of authority from the legislature, its authority “is at its maximum.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The decision of the DNR to distribute funds for a specific project or land acquisition is an exercise of executive power because the legislature conferred that authority on the executive when it established and reauthorized the program. The legislature retains the authority to “withdraw powers which have been granted, prescribe the procedure through which granted
powers are to be exercised, and, if necessary, wipe out the agency entirely.” Whitman, 196 Wis. at 508. The legislature could take away or limit the discretion of the executive branch to make spending decisions for the Program, but once it has conferred spending power on the executive, the legislative branch lacks any constitutional authority to reject an executive decision short of exercising its lawmaking power with the full participation of the legislature.
¶22 In this case, the legislature has prescribed by law the parameters of how and where the DNR may expend state funds under the Program. For example,
¶23 Once the legislature passes a bill that is signed by the governor and becomes law, “the legislature plays no part in enforcing our statutes[.]” Soc‘y Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385. The constitution assigns the execution of the law to the executive
¶24
outright reject the project. The statutes omit a deadline for the JFC to hold a meeting if there is an objection to a proposed expenditure. The review process ultimately permits the members of the JFC to serve as gatekeeper to the exercise of a core executive function. Effectively, JFC members make the spending decision—not the executive branch. This unfettered interference by the committee oversteps the boundaries of legislative authority by arrogating the executive branch‘s core power to choose which conservation projects best carry out the statutory purposes of the Program.
¶25 In defending the JFC‘s statutory review process, the legislature did not offer any historical support surrounding the state‘s founding for similar post-enactment legislative review processes as a prerequisite for executive branch action. Instead, the legislature cites the emergence of complex state governance in the 1970s and 1980s as the impetus for legislative committee review provisions. Rather than grounding their arguments in our constitution‘s text or our state‘s history, as reflected in our recent separation of powers jurisprudence, the legislative respondents primarily rely on the court of appeals decision J.F. Ahern Co. v. Wisconsin State Building Commission, 114 Wis. 2d 69, 336 N.W.2d 679 (Ct. App. 1983), to justify the legislative review process created by
¶26 In Ahern, the appellants alleged the State Building Commission—a legislative committee consisting of three assemblymen, three senators, the governor, and
¶27 The pragmatic approach applied in Ahern cannot be squared with the separation of powers principles embedded in our state constitution or the rationale underlying them: the dispersal of distinct powers among the three branches of government and the threats to liberty arising from the concentration of powers in one branch. See Gabler, 376 Wis. 2d 147, ¶7; SEIU, 393 Wis. 2d 38, ¶30; League of Women Voters, 387 Wis. 2d 511, ¶31. Absent the consent of the governed, none of the branches bear any authority to reallocate the powers the people constitutionally assigned to them. We overrule Ahern to the extent it endorses a restructuring of the constitutional separation of powers. Its functionalist analysis—which condones the “cooperative” sharing of core powers—subverted the constitution‘s separation of governmental powers.
¶28 The legislative respondents defend the legislative review process based on the “practicalities of modern legislation and administrative agencies . . . [which] frequently involve[] regulatory agencies administering broad legislative programs.” According to the respondents, review is particularly imperative in this case because “the DNR has mismanaged the Knowles-Nelson Stewardship Program,” including failing to control spending. We reject the respondents’ pragmatic arguments for sustaining the statutes because the legislature has no authority to control executive branch efforts to carry out the law. The constitution does not empower any branch to circumvent the constitutional confines of its authority even if it “believe[s] that more or different power is necessary.” A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935). “[I]n the long run the improvisation of a constitutional structure on the basis of currently perceived utility will be disastrous.” Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting). Upholding the statutes based on pragmatic considerations would reallocate the constitutionally prescribed core powers of the executive branch and the legislative branch in our state constitution. The power to do so belongs to the people alone. “Resolute resistance to intrusions across the constitutionally constructed . . . perimeter[s] does not represent a power play by one branch vis-à-vis another. ‘The purpose of the separation and equilibration of powers in general . . . was not merely to assure effective government but to preserve individual freedom.‘” Gabler, 376 Wis. 2d 147, ¶39 (quoting Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting)).
¶29 Legislative vetoes disrupt the governmental accountability the separation of powers facilitates. By appropriating a sum of money to the DNR for the Program with only broad direction, the legislature avoids the political judgments and votes necessary to appropriate funds with greater specificity. “[T]he legitimation of the legislative veto will enable continuation and expansion of the recent practice of adopting major measures by a process which preserves congressional control while relieving the people‘s representatives of the embarrassment of voting.” Antonin Scalia, The Legislative Veto: A False Remedy for System Overload, 3 Regulation: AEI Journal on Government and Society, 19, 25 (Nov./Dec. 1979). “If [the legislature] is willing to commit a matter to the executive, well and good; but if [the legislature] wants to retain control of the matter, and thereby admits that it has not completed its legislative function—then it must act by voting[.]” Id. The veto provisions undermine democratic governance by circumventing the lawmaking process—which requires the participation of the entire legislature—and punting to a committee the controversial and therefore politically costly positions legislators would otherwise need to take.
¶30 The legislature‘s concerns about the executive branch‘s unwillingness to faithfully execute the program in accordance with legislative policy preferences may be addressed via numerous constitutional tools at the legislature‘s disposal to rein in the executive branch. The legislature could lawfully limit the Program using its appropriation power to decrease funding for the Program, by narrowing the scope of discretion afforded to the executive branch through legislation, by enacting sunset provisions14 requiring the Program to be reauthorized by a later legislative session, by auditing the executive agency administering the Program, or by eliminating the Program altogether. Whitman, 196 Wis. at 508 (“[A]dministrative agencies are the creatures of the legislature and are responsible to it. Consequently the legislature may withdraw powers which have been granted, prescribe the procedure through which granted powers are to be exercised, and if necessary, wipe out the agency entirely.“). Additionally, the legislature could enact line-item appropriations for specific projects.15
¶32 James Madison warned of the ambition of the legislative branch to grasp at powers beyond its constitutional realm: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” The Federalist No. 48, supra, at 333. The legislative “powers being at once more extensive, and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” Id. at 334. In granting the JFC the ability to stymie the executive branch from carrying out the laws passed by the legislature, the statutes encroach upon the governor‘s constitutional mandate to execute the law.
¶33 While the legislature possesses the power to determine whether and how to fund the land acquisition portion of the Program,16 the constitution does not empower the legislature to participate in the execution of the law, nor can the legislature give itself such authority. The legislative review provisions in
IV. CONCLUSION
¶34 Article IV, Section 1 of the Wisconsin Constitution vests broad authority in
By the court—
¶35 ANN WALSH BRADLEY, J. (concurring). Sometimes it is just as important to emphasize what a majority opinion is not about as it is to clarify what the opinion is about. This is such an occasion.
¶36 The focus of the majority opinion is on core executive powers. It need not, and does not, define the contours of any core legislative powers or shared powers. Additionally, despite the exchange in the separate writings below, this case is not about the non-delegation doctrine. It was not briefed or argued by the parties and the majority opinion does not address it.
¶37 Having delineated the substance of the majority opinion, I turn next to discuss why I concur. I join the majority opinion but write separately to briefly address the standard of review in constitutional cases.
¶38 As in any case, our review in the present case is guided and circumscribed by our standard of review. In constitutional cases, we have long adhered to a standard that places a “heavy burden” on a challenging party. See, e.g., Mayo v. Wis. Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶27, 383 Wis. 2d 1, 914 N.W.2d 678.
¶39 Namely, we have presumed that a statute is constitutional and placed the onus on the challenger to demonstrate that the statute is unconstitutional “beyond a reasonable doubt.” State v. Prado, 2021 WI 64, ¶37, 397 Wis. 2d 719, 960 N.W.2d 869; see also Cath. Charities Bureau, Inc. v. LIRC, 2024 WI 13, ¶15, 77, 94, 411 Wis. 2d 1, 3 N.W.3d 666; State v. Christen, 2021 WI 39, ¶32, 396 Wis. 2d 705, 958 N.W.2d 746; State v. Roundtree, 2021 WI 1, ¶18, 395 Wis. 2d 94, 952 N.W.2d 765; Winnebago County v. C.S., 2020 WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875. The phrase “beyond a reasonable doubt” “expresses the ‘force or conviction with which a court must conclude, as a matter of law, that a statute is unconstitutional before the statute . . . can be set aside.‘” Mayo, 383 Wis. 2d 1, ¶27 (quoted source omitted).
¶40 In the briefing in this case, the Governor advocated for a narrow alteration to our constitutional standard of review. This argument was circumscribed, advancing that the standard of review for constitutional cases should change in the context of a separation-of-powers dispute only. Namely, the Governor argued: “When the legislative branch passes a law that allegedly usurps another branch‘s core power, presuming such a statute to be valid would improperly place a thumb on the legislative branch‘s side of the scale.”
Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct.
487 U.S. 654, 704-05 (1988) (Scalia, J., dissenting). If the branches of government are “perfectly co-ordinate,” then the playing field must be a level one. See id. at 705. Where the very issue before the court is the contours of the branches’ powers vis-à-vis each other, it is not logical to begin the case with a slant in either direction.
¶42 I emphasize that our “beyond a reasonable doubt” standard of review retains vitality, but as presented in the argument before us, I conclude that the “beyond a reasonable doubt” standard is a poor fit in the separation-of-powers context. Abandoning the standard in the context of separation of powers evens the playing field between the branches, while leaving the standard of review for other types of constitutional challenges intact.
¶43 For the foregoing reasons, I respectfully concur.
¶44 I am authorized to state that Justices REBECCA FRANK DALLET and JANET C. PROTASIEWICZ join this concurrence.
¶45 REBECCA GRASSL BRADLEY, J. (concurring). “[T]hat the legislative, executive and judiciary departments ought to be separate and distinct” is an “essential precaution in favor of liberty.” The Federalist No. 47, at 323 (James Madison) (Jacob E. Cooke ed., 1961). Like the Framers of the Federal Constitution, the Founders of our state believed the separation of powers was “essential to the preservation of liberty.” The Federalist No. 51, supra, at 348 (James Madison). The “tripartite separation of independent governmental power” enshrined in our constitutions “remains the bedrock of the structure by which we secure liberty in both Wisconsin and the United States.” Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶13, 376 Wis. 2d 147, 897 N.W.2d 384.
¶46 The structural separation of powers protects the liberty of the People by barring the aggregation of power within one branch of government. League of Women Voters of Wis. v. Evers, 2019 WI 75, ¶31, 387 Wis. 2d 511, 929 N.W.2d 209; Koschkee v. Taylor, 2019 WI 76, ¶45, 387 Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley, J., concurring); Gundy v. United States, 588 U.S. 128, 156-57 (2019) (Gorsuch, J., dissenting). “[A] mere demarcation on parchment of the constitutional limits of the several departments,” however, “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” The Federalist No. 48, supra, at 338 (James Madison). Keeping each branch “within the limits assigned to their authority” rests largely with the judiciary because constitutional limitations on the exercise of governmental power “can
¶47 In 2017, this court protected the judicial branch‘s core powers from legislative interference. Gabler, 376 Wis. 2d 147. In 2019, this court safeguarded the legislature‘s core powers against judicial encroachment. League of Women Voters, 387 Wis. 2d 511. Today, this court restores the executive branch‘s core powers after legislative arrogation. Consistent application of the separation of powers principles espoused in these cases requires the court to retrieve the legislature‘s core lawmaking power from the administrative apparatus residing in the executive branch.
¶48 As the court expounded in Gabler and reiterates in this case, preservation of the separation of powers does not prefer one branch over another. We defend the constitutional boundaries of governmental authority to preserve individual freedom, to ensure the people remain sovereign over those to whom the people delegated the power to govern. “[D]eriving [its] just powers from the consent of the governed,” Wisconsin‘s government was instituted to secure the people‘s inherent rights, including “life, liberty and the pursuit of happiness[.]”
¶49 Our constitution vests three separate branches—the legislature, the executive, and the judiciary—with particular powers, which no other branch may wield. See majority op., ¶3. “When the [g]overnment is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.”1 Dep‘t of Transp. v. Ass‘n of Am. R.R., 575 U.S. 43, 68 (2015) (Thomas, J., concurring in the judgment). Any deviation from the division of powers the people delegated to each branch would be illegitimate, having been made without the people‘s consent.
¶50 In this case, the court vindicates the constitution‘s design by holding the legislature cannot take for itself the executive‘s core function of executing the law, even if the executive at one time consented to the arrangement. The court‘s decision in this case does not enhance executive power; rather, it returns the legislature to its constitutionally prescribed domain. See Fabick v. Evers, 2021 WI 28, ¶57, 396 Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl Bradley, J., concurring) (“This court does not referee partisan battles; our duty is to ensure that each branch of government respects the constitutional limits of its authority.“). The separation of powers, and its protection of the people‘s liberty, would collapse if one branch could seize for itself the powers of another. See Gabler, 376 Wis. 2d 147, ¶31.
¶51 The constitution guards against one branch‘s attempts to cede its powers to another branch as much as it prevents one branch from usurping another branch‘s powers. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶48, 382 Wis. 2d 496, 914 N.W.2d 21 (lead opinion) (a branch may not “abdicat[e]” or “abandon” its power
¶52 The vesting clauses conclusively confer the powers each branch may exercise: “No one“—not the legislature, the executive, or the judiciary—may “alter [the] arrangement” enshrined in our constitution. Gundy, 588 U.S. at 153 (Gorsuch, J., dissenting); League of Women Voters, 387 Wis. 2d 511, ¶35 (quoting Goodland v. Zimmerman, 243 Wis. 459, 467, 10 N.W.2d 180 (1943)) (“The separation of powers ‘operates in a general way to confine legislative powers to the legislature.‘“); Wis. Legislature v. Palm, 2020 WI 42, ¶67, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca Grassl Bradley, J., concurring) (footnote omitted) (“Statutory law being subordinate to the constitution, not even the people‘s representatives in the legislature may consolidate [] power in one person.“). The “‘power to make law . . . was reserved exclusively to the Legislature, and any attempt to abdicate it in any particular field, though valid in form, must, necessarily, be held void.‘” Rules of Court Case, 204 Wis. 501, 503 (1931) (quoting State ex rel. Mueller v. Thompson, 149 Wis. 488, 491, 137 N.W. 20 (1912)). “Because the people gave the legislature its power to make laws, the legislature alone must exercise it. Our constitutional structure confers no authority on any branch to subdelegate any powers the sovereign people themselves delegated to particular governmental actors.” Fabick, 396 Wis. 2d 231, ¶56 (Rebecca Grassl Bradley, J., concurring).
¶53 This court‘s enforcement of the non-delegation doctrine embedded in our constitution eroded over time. The court has allowed executive branch officials and unelected bureaucrats to exercise the lawmaking power of the legislature, see, e.g., Koschkee, 387 Wis. 2d 552, ¶12 (stating “when administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute“), provided adequate “procedural safeguards” are in place. Panzer v. Doyle, 2004 WI 52, ¶¶54-55, 70-71, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated on other grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408; Gilbert v. State, Med. Examining Bd., 119 Wis. 2d 168, 186, 349 N.W.2d 68 (1984); Westring v. James, 71 Wis. 2d 462, 468, 238 N.W.2d 635 (1976); Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182 N.W.2d 257 (1971); Schmidt v. Dep‘t of Res. Dev., 39 Wis. 2d 46, 57-58, 158 N.W.2d 306 (1968). The procedural safeguard requirement is not demanding. Panzer, 271 Wis. 2d 295, ¶¶70-71
¶54 The court‘s reluctance to enforce the constitutional constraints on subdelegation emerged long after Wisconsin‘s founding. “In the early years of Wisconsin‘s statehood, this court understood that the three branches of government could not delegate their vested powers, imposing substantive limitations on the legislature‘s assignment of authority to the executive to carry out the legislature‘s policies.” Fabick, 396 Wis. 2d 231, ¶64 (Rebecca Grassl Bradley, J., concurring). As the court in Slinger v. Henneman explained, “It is a settled maxim of constitutional law, that the power thus conferred upon the legislature cannot be delegated by that department to any other body or authority.” 38 Wis. 504, 509-10 (1875). “Legislators have no power to anoint legislators; only the people do.” Becker, 403 Wis. 2d 424, ¶75 (Rebecca Grassl Bradley, J., dissenting). Accordingly, the constitution requires that “a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgment of the electors or other appointee or delegate of the legislature.” Dowling v. Lancashire Ins. Co., 92 Wis. 63, 74, 65 N.W. 738 (1896); accord State ex rel. Adams v. Burdge, 95 Wis. 390, 401-02, 70 N.W. 347 (1897). Laws violating this rule were held “inoperative and void.” Slinger, 38 Wis. at 510. It was only “in the wake of the Progressive era[] [that] this court began to uproot substantive limits on the legislature‘s delegation of its constitutionally-conferred powers.” Fabick, 396 Wis. 2d 231, ¶64 (Rebecca Grassl Bradley, J., concurring).
¶55 Apologists for delegations of legislative authority to the executive branch primarily invoke the ostensible “overpowering necessity” of modern governance. State ex rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 498, 220 N.W. 929 (1928); Koschkee, 387 Wis. 2d 552, ¶17 (quoting Gilbert, 119 Wis. 2d at 184) (“We have long recognized that ‘the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government.‘“); Mistretta v. United States, 488 U.S. 361, 372 (1989) (citations omitted) (“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.“). But “[t]hose to whom the people have conferred constitutional powers may not circumvent those grants simply ‘because they believe that more or different power is necessary.‘” Koschkee, 387 Wis. 2d 552, ¶46 (Rebecca Grassl Bradley, J., concurring) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935)). Even “[e]xtraordinary conditions“—such as a global pandemic—“do not create or enlarge constitutional power.” A.L.A. Schechter, 295 U.S. at 528; Fabick, 396 Wis. 2d 231, ¶50 (Rebecca Grassl Bradley, J., concurring); Palm, 391 Wis. 2d 497, ¶¶70, 73 (Rebecca Grassl Bradley, J., concurring). If emergencies do not enlarge the legislature‘s ability to delegate legislative power, then the permanent, ongoing “necessity” known as “modernity” does not either. See Philip Hamburger, Is Administrative Law Unlawful?, at 422 (2014).
¶56 In this case, the court vindicates that principle, rejecting the legislative respondents’ pragmatic arguments rooted in
¶57 Today, the court upholds the structural separation of powers enshrined in the constitution. Not all members of the majority have done so in the past. See, e.g., Becker, 403 Wis. 2d 424, ¶30 (lead opinion) (minimizing the separation of powers as something the court has “inferred” but “never
interpreted . . . in a literal sense“); League of Women Voters, 387 Wis. 2d 511, ¶¶43-54 (Dallet, J., dissenting) (joined by Ann Walsh Bradley, J.) (dissenting from decision declaring the December 2018 extraordinary session of the Wisconsin Legislature constitutional). As Chief Justice Annette Kingsland Ziegler notes in her dissent, “we have no assurance that constitutional principles . . . will be equally applied, in the same manner, across the board, to the other branches in the future.” Dissent, ¶83. The Chief Justice‘s concern is well founded. With respect to the exercise of governmental powers, three members of the majority (Justices Ann Walsh Bradley, Rebecca Frank Dallet, and Jill J. Karofsky) have invariably ruled against the legislature and in favor of the executive branch.2 They
justices during the past five years to demonstrate uniform allegiance to one branch and unvarying hostility toward another.
¶58 “Working from an understanding of the [c]onstitution at war with its text and history,” Justice Rebecca Frank Dallet‘s denialism toward the non-delegation doctrine—a foundational principle “respecting the people‘s sovereign choice to vest the legislative power in [the legislature] alone“—betrays a willingness to destabilize “a structure designed to protect [the people‘s] liberties, minority rights, fair notice, and the rule of
law.”3 Gundy, 588 U.S. at 149, 156 (Gorsuch, J., dissenting). Justice Dallet‘s concurrence lends credence to the Chief Justice‘s apprehension that four members of the majority will “restrain[] only the legislative branch” and will “aggregate power in the [] executive branch.” Dissent, ¶83. Foreshadowing a contemporary remaking of the traditional “Schoolhouse Rock understanding of civics,” Justice Dallet‘s concurrence, ¶62, Justice Dallet joined Justice Ann Walsh Bradley‘s dissent from a decision reaffirming that “when administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute.” Koschkee, 387 Wis. 2d 552, ¶12. In her concurrence in this case, Justice Dallet declares “it is
Although Justice Dallet decries the legislature‘s request for what she labels a “radical[] alter[ation]” of our separation of powers doctrine, she advocates for one herself, opining that making rules governing society is somehow an executive function if a statute allows for it—or is at least a shared power. Justice Dallet‘s concurrence, ¶¶67, 73. This vision of governmental power is a contemporary invention unknown at the founding.
unsettled whether executive branch agencies exercise legislative power at all when they execute a statute within the bounds set by the legislature, including by making administrative rules . . . .” Justice Dallet‘s concurrence, ¶73. This misconception of governmental power suggests this court will stray from its ring, masquerade as the ringmaster, and expansively redraw the ring of the executive while shrinking the
¶59 The constitution cannot be construed as a one-way ratchet. The separation of powers must be maintained across the board, for both political branches irrespective of which party controls them. The constitution does not permit the legislature to wield the powers vested in the executive branch, nor does the constitution permit the legislature to cede its lawmaking authority to the executive. If this court fails to apply the separation of powers consistently, the court will compromise the structural integrity of the constitution and expose the people it protects to depredations of their liberty by facilitating the “gradual concentration of the several powers” in one branch. The Federalist No. 51, supra, at 349 (James Madison). While some members of this court may prefer (for now) the executive branch to the legislative, the constitution does not. Construing it otherwise risks the demise of our constitutional republic.
¶60 REBECCA FRANK DALLET, J. (concurring). I join the majority opinion and Justice Ann Walsh Bradley‘s concurrence. I write separately to emphasize that this case implicates only the governor‘s core power to faithfully execute the laws, and does not involve what we have called “shared powers” or implicate the so-called “non-delegation doctrine.” No power was shared, and nothing was delegated.
I
¶61 Our constitution creates a tripartite system of government, vesting the executive power in the governor, the legislative power in the senate and assembly, and the judicial power in the court system. See
¶62 When only core powers are at issue, separation-of-powers questions often have clear answers. You don‘t need much more than a Schoolhouse Rock understanding of civics to know that the legislature can‘t pass a law authorizing a legislative committee to exercise the judicial power. See Schoolhouse Rock!, Three Ring Government (1979), https://www.youtube.com/watch?v=pKSGyiT-030 (“Ring one, Executive. Two is Legislative, that‘s Congress. Ring three, Judiciary.“). That power belongs to the judiciary. See
statutes like
¶63 But it is important to emphasize that this simple, core-powers vision of the separation of powers is just the beginning, not “an ending too.” See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 265 (2020) (Kagan, J., concurring in part). Like the United States Constitution, the Wisconsin Constitution creates a separation of powers that is, “by design, neither rigid nor complete.” See id. As we have put it, “determining ‘where the functions of one branch end and those of another begin’ is not always easy.” SEIU, 393 Wis. 2d 38, ¶34 (quoting State v. Holmes, 106 Wis. 2d 31, 42-43, 315 N.W.2d 703 (1982)). That is why we have recognized another category of governmental powers: Shared powers. Shared powers are those that “lie at the intersections of . . . core constitutional powers.” State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). In these “borderlands” between the branches’ core powers, we have held that each branch may exercise power “but no branch may unduly burden or substantially interfere with another branch.” Id. at 644. Nothing in our decision today alters that longstanding approach to shared powers, or undermines the basic insight of our shared powers cases: That the separation of powers must have some flexibility when the powers of coordinate branches of government intersect.
¶64 The legislature offered two unconvincing arguments for why the authority granted to the Joint Finance Committee by
¶65 The legislature‘s first argument is unpersuasive because, as we have said before, the governor “oftentimes carries out his functions through administrative agencies.” SEIU, 393 Wis. 2d 38, ¶37. When he does so, those agencies are “exercising executive power,” even if they were created by the legislature. Id. In other words, “the legislature does not confer on administrative agencies the ability to exercise executive power; that comes by virtue of being part of the executive branch.” Id., ¶131. And as the majority opinion correctly explains, DNR is exercising core executive power when it administers the Knowles-Nelson program. See majority op., ¶¶18-19. Although the legislature has the power to create agencies and define their scope of authority, “the power to spend appropriated funds in accordance with the law enacted by the legislature” falls within the executive‘s core power to faithfully execute the laws. Id., ¶18.
¶66 The legislature‘s second argument—that its power to pass appropriations bills means that whenever DNR spends money in accordance with an appropriation, that expenditure is an exercise of shared power—is similarly unavailing. To be sure, our constitution provides that “[n]o money shall be paid out of the treasury except in pursuance of an appropriation by law.”
¶67 Accepting either of the legislature‘s shared powers arguments would radically alter the separation of powers in Wisconsin. As we have suggested before, we would head down “a dangerous path” if we concluded that the legislature may control everything an agency or officer does simply because the legislature created that agency or officer. SEIU, 393 Wis. 2d 38, ¶131 (explaining that similar reasoning would allow the legislature to control how circuit court judges exercise their judicial power since the legislature “did not have to create the circuit court position in the first place and could eliminate
allow one branch, the legislature, to dictate how and whether other branches may exercise their core powers.
¶68 To summarize, this case doesn‘t involve shared powers at all. Rather, this case involves only the executive‘s core power to faithfully execute the laws. Because
II
¶69 Additionally, this case does not involve the so-called “non-delegation doctrine.” Before explaining why, it is helpful first to identify what people mean when they invoke the “non-delegation doctrine.” One formulation—widely accepted in our cases—is the simple inference derived from the three-branch structure of our government “that none of the three governmental powers—executive, legislative, or judicial—can be entirely delegated away from the branch to which the constitution vests it.” Becker v. Dane County, 2022 WI 63, ¶30, 403 Wis. 2d 424, 977 N.W.2d 390 (lead op.) (citing In re Constitutionality of § 251.18, Wis. Statutes, 204 Wis. 501, 503, 236 N.W. 717 (1931)). In other words, our constitution does not permit, for example, the wholesale delegation of the legislative power to the governor, or the executive power to the legislature. See id.
¶70 Nevertheless, our constitution allows for some delegation of legislative authority. Klisurich v. DHSS, 98 Wis. 2d 274, 279, 296 N.W.2d 742 (1980). Indeed, “[w]e have long
recognized that ‘the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government.‘” Koschkee v. Taylor, 2019 WI 76, ¶17, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting Gilbert v. Med. Examining Bd., 119 Wis. 2d 168, 184, 349 N.W.2d 68 (1984)). In assessing whether a law delegating legislative authority to an executive branch agency violates our constitution, we “examine both the substantive nature of the granted power and the adequacy of attending procedural safeguards against arbitrary exercise of that power.” Becker, 403 Wis. 2d 424, ¶31 (lead op.). So long as a legislative grant of authority contains both an “ascertainable” purpose and “procedural safeguards,” it is constitutional. Klisurich, 98 Wis. 2d at 280. The upshot of these cases is that our non-delegation inquiry, like its federal equivalent, “always begins (and often almost ends) with statutory interpretation.” See Gundy v. United States, 588 U.S. 128, 135 (2019) (plurality op.).
¶71 In recent years, however, some have argued that we should revisit these cases, and adopt a more restrictive version of the non-delegation doctrine that would prohibit the delegation of any legislative power to the other branches. See Becker, 403 Wis. 2d 424, ¶33 (lead op.) (rejecting such an argument with respect to delegations of local authority to local health officials). In this case, an amicus curiae argued that the governor‘s separation-of-powers arguments “effectively ask this Court to . . . revitalize the non-delegation doctrine—but only to the extent that it aggregates power in the executive.” And
concurrence, Justice Rebecca Grassl Bradley suggests that “[t]he first principles espoused in this court‘s decision should revitalize the dormant non-delegation doctrine, reject the discredited notion that the ‘necessities’ of modern governance justify disregarding our constitution‘s commands, and restore our original understanding of the vesting clauses, which bar any subdelegation of the legislature‘s powers.” Justice Rebecca Grassl Bradley‘s concurrence, ¶56.
¶72 This account of today‘s decision is incorrect, for several reasons. For starters, we cannot “revitalize” a “dormant” doctrine that never existed before. As some scholars have argued, the historical case for a more restrictive version of the non-delegation doctrine, at least at the federal level, is weak. See Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 279-81 (2021); but see Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1494 (2021) (arguing that “[a]lthough the history is messy,” it supports a version of the non-delegation doctrine). Some proponents of a more restrictive version of the non-delegation doctrine nevertheless argue that “[t]he non-delegation principle traces its origins to English law,” see Becker, 403 Wis. 2d 424, ¶97 (Rebecca Grassl Bradley, J., dissenting), specifically to an analogy from a supposed rule of the common law of agency that prevented agents from further delegating authority granted by their principal. See id., ¶¶96-97. But “[i]t is hard to overstate the ahistoricity of this claim, because this supposed principle of the common law of agency may never have been widely accepted and, in any event, there
is no evidence anyone thought the analogy to agency law should govern constitutional interpretation. See Mortenson & Bagley, supra at 297. Moreover, the historical evidence for a more restrictive non-delegation doctrine in Wisconsin is virtually nonexistent. The sweeping claim that the people who drafted and ratified the Wisconsin Constitution in 1848 understood it implicitly to prohibit any delegation of authority from one branch to another one demands far more evidence than a couple of newspaper editorials in 1846 describing the legislature in passing as “agents of the people,” or explaining that “[a]ll legitimate power proceeds from the people.” See Becker, 403 Wis. 2d 424, ¶¶93-95 (Rebecca Grassl Bradley, J., dissenting) (quoting Taxation—Borrowing Money (1846) and A Convention Editorial (1846), reprinted in The Movement for Statehood, 1845-46, at 179, 310 (Milo M. Quaife, ed. 1918)). Given the lack of historical evidence in Wisconsin supporting a more restrictive version of the non-delegation doctrine, it should not be a surprise that we have “never interpreted” the Wisconsin Constitution “in a literal sense to bar the delegation of any legislative power outside the senate and assembly.” Becker, 403 Wis. 2d 424, ¶30 (lead op.).
¶73 But putting history aside, the substantive case for a more restrictive version of the non-delegation doctrine is also weak under the Wisconsin Constitution. All our constitution says is that the legislative, executive, and judicial powers are vested in each respective branch of government. See
simply an inference from our constitutional structure. Moreover, it is unsettled whether executive branch agencies exercise legislative power at all when they execute a statute within the bounds set by the legislature, including by making administrative rules pursuant to legislative authorization. Even if agencies do, however, “exercise both executive and legislative powers” in such circumstances,
¶74 But more fundamentally, accepting the governor‘s position in this case does not implicate any version of the non-delegation doctrine, let alone a more restrictive one.
WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. And for that reason, this case doesn‘t involve the non-delegation doctrine at all.
*
*
*
¶75 I conclude by addressing a disturbing aspect of some recent opinions in our court, which level accusations of bad faith and bias against my colleagues and me. Here, we have two separate writings that do so. In her dissent, Chief Justice Ziegler stoops to accusations of bad faith and political bias rather than engage in a reasoned debate about the law. And Justice Rebecca Grassl Bradley can‘t pass up an opportunity to join in. In a bizarre twist, she writes separately to accuse the very justices who join her majority opinion of doing so only for political reasons.
¶76 At best, these writings are a distraction from what should be the focus. Today, we reached a nearly unanimous conclusion that
¶77 Perhaps it is inevitable that some will mistake our decisions simply as “wins” for one set of political interests over another. But Wisconsin Supreme Court Justices should not fuel those misperceptions with headline-seeking rhetoric. Doing so undermines the rule of law and harms both this institution and our state. We are all judges committed to fairly, neutrally, and impartially considering the issues before us without prejudgment and rendering decisions that follow the law, not the party line.
No one—least of all other members of this court—should suggest otherwise.
¶78 I am authorized to state that Justices ANN WALSH BRADLEY, JILL J. KAROFSKY, and JANET C. PROTASIEWICZ join this opinion.
¶79 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). As was said in the dissent to the order granting this petition for original action, this case “raises substantial questions about the proper roles of the executive and legislative branches under the
Stewardship program, which vetoes are authorized by
Under current law, the [JFC] has reviewed gubernatorial appropriations under the Knowles-Nelson Stewardship Program (the Program) for more than fifteen years. 2007 Wis. Act 20, § 646t; Wisconsin Legislative Fiscal Bureau, Warren Knowles-Gaylord Nelson Stewardship Program (Informational Paper # 61, prepared by Eric Helper, Jan. 2019). The Governor suddenly asserts this legislative oversight of appropriations under the Program violates the separation of powers doctrine and urgently warrants this court invoking its original
Interestingly, employing the opposite approach, those four members of the court recently granted two separate cases, with separate issues therein, to be decided together even though normally one would be held in abeyance. See Kaul v. Urmanski, No. 2023AP2362, unpublished order (Wis. July 2, 2024) (granting petition for bypass), and Planned Parenthood v. Urmanski, No. 2024AP330-OA, unpublished order (Wis. July 2, 2024) (granting petition for original action). As to these two separate cases, Justice Karofsky tried to justify this disparate treatment, stating:
Here, the court is granting a petition whose resolution may depend on how we rule in another case . . . . [I]t is not particularly groundbreaking for this court to schedule two cases with interdependent issues at the same time. . . .
The court does not know how it should resolve a particular case until it reviews all of the arguments made by the parties. Consequently, it makes good sense to hear all of the relevant legal arguments before rendering a decision . . . .
Planned Parenthood, No. 2024AP330-OA, unpublished order at 4 (Karofsky, J., concurring) (emphasis added). For the new majority, different principles apply depending on whether a “pet issue” is at stake. Planned Parenthood, No. 2024AP330-OA, unpublished order at 11 (Hagedorn, J., dissenting).
jurisdiction. The timing is no coincidence; the Governor knows he has a friendly foursome standing by to do his bidding.
Evers v. Marklein, No. 2023AP2020-OA, unpublished order (Wis. Feb. 2, 2024), at 2-3 (Rebecca Grassl Bradley, J., dissenting). Here, “[i]nvoking our original jurisdiction sets this court on a perilous path to resolve interbranch disputes whenever the Governor complains the Legislature is hindering his policy agenda.” Id. at 3.
¶81 Nonetheless, and despite the strong dissent of three of their colleagues, four members of the court handpicked but one issue to fast-track and decide.5 I dissented then, and I dissent now. Consistency has not always been the new majority‘s strong suit, but when it comes to picking political favorites, they have been unwaveringly faithful to the cause.6 Instead of allowing this
case to proceed through the process, sifting and winnowing the issues, and then taking all the issues at the same time, which would serve to produce consistency, they forge on. Selecting an issue that only impacts the Republican-controlled
¶82 Simply stated, there is no good reason why those four members of the court gave preferential selection to part of this case, fast-tracking only one of the three issues, rushing to decide that lone issue, which just happens to limit legislative power only. What‘s the rush? There is absolutely no good reason to have handpicked this case and this one issue, ahead of all the other cases, taking it out of turn, and placing it to the front of the line. That is not our usual practice, nor should it be. We should not be picking favorites and delivering results.
¶83 As to the merits of this case, I recognize that the majority opinion has cabined its analysis to separation of powers principles and concludes that the legislative branch cannot exercise a core power of the executive branch. I raise concern about deciding this one issue alone, applying these principles to the legislature only. At least two of my colleagues would not
have decided this one issue alone in this case at this time.7 If this becomes a singular application of separation of power principles or the non-delegation doctrine, which restrains only the legislative branch, that amounts to aggregation of power which runs counter to fundamental constitutional principles. The principles the majority applies today must have consistent application, which could have been more even-handedly accomplished by hearing all the issues in due course. Because this sole issue is being decided in a vacuum and on an expedited basis, we are at risk of seeing a selective application of separation of power and non-delegation principles and, ultimately, imbalance between the branches. The petitioners8 effectively ask this court to revitalize separation of powers and the non-delegation doctrine, but as applied to the Republican-controlled branch only. This limited application could ultimately serve to aggregate power in the Democratic-controlled executive branch. Without considering all issues together and in due course, the doctrine may be applied inconsistently. Here, because one issue is being taken up in a vacuum, handpicked for quick “justice,” we have no assurance that constitutional principles, whether separation of powers or non-delegation doctrine principles, will be equally applied, in the same manner, across the board, to the other branches in the future.
¶84 Instead, my colleagues who accepted this case for review and then accepted only one limited issue, fail to “see the prudence of patience and humility” and the worth of proceeding cautiously.9 The statutory authority that the JFC has retained over the Knowles-Nelson Stewardship Program complies with bicameralism and presentment requirements,10 as the JFC‘s authority to review expenditures was voted on by the entire legislature and signed by the governor. The decision the court makes today limits only the Republican legislature‘s continued control over already allocated money—a longstanding practice. Having said that, no relief appears to exist for the legislature to claw back appropriations that it may not have allocated if it knew that it would lose any ability to ensure the expenditures were being made appropriately. Government tends to spend what it has been allocated, and this procedure provided a check on that spending.
¶85 The majority does not grapple with the unintended consequences of this ruling. Consequential reasoning is not necessarily legal reasoning, but there are likely practical implications. An unintended consequence might be that this opinion could be used to impact other longstanding practices, even though this opinion is limited to this one program. Another unintended consequence may be that the legislature will proceed quite differently in its decision making and allocations. For example, the legislature could decide that it will no longer allocate funds to the longstanding and respected Knowles-Nelson Stewardship Program. This could result in less, not more, allocations for important projects, like those accomplished by the Knowles-Nelson Stewardship Program. The legislature may need to, more formally and less efficiently, address funding of individual worthy projects, because continued control of the purse has been limited.
¶86 More specifically with respect to the issue at hand, I lament how handpicking this lone issue has the appearance of being just one more in a series of political “power grabs.”11 Why now is it so important to put a stop to this decades’ long practice? For decades, the legislature has used joint committees, like this one, to review actions by the governor and state agencies. This
¶87 In J.F. Ahern Co. v. Wisconsin State Building Comm‘n, 114 Wis. 2d 69, 336 N.W.2d 679 (Ct. App. 1983), the court of appeals unanimously determined that it was not a violation of Wisconsin‘s separation of powers doctrine to allow a legislative committee such as the JFC—in this instance, the State Building Commission12—to “exercise executive powers to the exclusion of the executive branch.” J.F. Ahern Co., 114 Wis. 2d at 108. The court determined the Commission‘s “apparent ability to exclude the executive branch from exercise of its own powers does not . . . necessarily violate the separation doctrine . . . .” Id. Rather, “[a] practical requirement of unanimity between the legislative members of the Building Commission, on the one hand, and the governor, on the other, therefore exists. That compulsory unanimity converts the shared power over building construction into a cooperative venture between the two governmental branches.” Id. Our court did not overturn that decision until now, over 40 years later. For decades, the legislative and executive branches relied on those principles and complied with them.
¶88 In Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992), our court unanimously held it was constitutional for the joint legislative committee to suspend agency rules. Martinez, 165 Wis. 2d at 699-700. J.F. Ahern Co. was cited with approval. See id. at 697 (citing J.F. Ahern Co., 114 Wis. 2d at 88) (“Legislative power may be delegated to an administrative agency as long as adequate standards for conducting the allocated power are in place.“). The legislature is endowed with constitutional authority to manage the public fisc and has the constitutional power of the purse.13 The JFC has operated as a vehicle for the legislature to remain “accountable” for governing the public fisc and to “check on the activities of non-elected agency bureaucrats.” Martinez, 165 Wis. 2d at 701.14
¶89 The court
¶90 Unfortunately, facilitating inconsistency in the law, as has been the practice of the new majority, does not put the state of Wisconsin on better footing. While I recognize that the court declares this JFC review to be unconstitutional because it violates separation of powers, stare decisis principles are absent and overturning case law has been wrongly based on mere disagreement with a prior decision. See Clarke v. Wisconsin Elections Comm‘n, 2023 WI 79, ¶¶78-184, 410 Wis. 2d 1, 998 N.W.2d 370 (Ziegler, C.J., dissenting) (redistricting); see also, State v. Roberson, 2019 WI 102, ¶97, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting) (quoted source omitted) (“The outcome of a case should not turn on whether the current members of the court find one legal argument more persuasive but, rather, on ‘“whether today‘s [majority] has come forward with the type of extraordinary showing that this court has historically demanded before overruling one of its precedents.“‘“); Ramos v. Louisiana, 590 U.S. 83, 121-22 (2020) (Kavanaugh, J., concurring in part) (“A garden-variety error
¶91 For over a century, the JFC has been an important part of how allocations in Wisconsin are managed. This longstanding review structure allowed joint legislative committees to approve or reject important matters. The JFC reviews certain limited expenditures by the DNR to address the Knowles-Nelson Stewardship Program. For decades, the JFC has been a fundamental part of governmental structure in Wisconsin. While application of separation of power principles are the basis for the court‘s conclusion that the JFC‘s authority to review DNR spending decisions is unconstitutional, we know not the other implications of this decision even though the majority limits its decision to the one issue selected—the Knowles-Nelson Stewardship Program. That program and the JFC have long functioned in a fundamental and important way to allow review and decision making regarding fiscal expenditures.
¶92 The JFC is a statutory standing committee, constituted under the Wisconsin Legislature. The JFC exists to review all state appropriations and revenues, including the governor‘s recommended budget and other fiscal bills, as well as providing supplementation of agency appropriations. The JFC also is empowered to attach an emergency clause to any appropriation bill decreasing state revenues or increasing the cost of state government in advance of the budget bill. The JFC acts upon agency requests for changes in their authorized position levels, as most of those positions are provided for through the biennial budget. Additionally, the JFC has many other statutory duties, which while not at issue in this case, are nonetheless instructive of how essential the JFC is.16 The JFC is one of several legislative committees, but given its role, it is an important one. Ever since its initial iteration in 1911, the JFC and its oversights have long provided guidance and checks on programs that have the potential for huge economic outlay.
¶93 The decision of the court today, despite being limited to this particular program and based on separation of power principles, could be perceived as having broader impact on the way Wisconsin government has managed the power of the purse for over 100 years. All three branches of government have functioned with the understanding that the JFC operates with authority to review certain spending and in fact, that review has been deemed constitutional
¶94 In short, I disagree with rushing to judgment, on this limited issue, taking this case out of turn. There is simply no need.
¶95 As a result, I respectfully dissent.
Notes
CRITERIA FOR GRANTING REVIEW. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court‘s discretion, indicate criteria that will be considered:
(a) A real and significant question of federal or state constitutional law is presented.
(continued) rulemaking or, at minimum, DSPS‘s and the Board‘s rulemaking authority over commercial building standards and ethics standards for social workers, marriage and family therapists, and professional counselors?[Issue 2] Wisconsin‘s biennial budget bill, 2023 Wis. Act 19, provides a pay adjustment for [University of Wisconsin (UW)] and all other state employees. Again, courts have universally recognized that spending appropriated funds is an executive power and that legislative committees cannot block the executive‘s exercise of that power.
Wisconsin Stat. § 230.12(3)(e)1. authorizes the Joint Committee on Employment Relations, an eight-member legislative committee, to veto UW‘s pay adjustments. Does this veto provision facially violate the separation of powers?[Issue 3] Under various provisions of
Wis. Stat. ch. 101 , [Department of Safety and Professional Services (DSPS)] is charged with promulgating rules relating to commercial building safety, accessibility, and energy efficiency. UnderWis. Stat. § 457.03(2) , the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board is responsible for developing ethics standards for social workers, marriage and family therapists, and professional counselors. Courts have broadly recognized that blocking executive branch agencies’ rules violates bicameralism and presentment procedures and infringes on executive and judicial authority.Wisconsin Stat. §§ 227.19(5)(c) ,(d) ,(dm) , and227.26(2)(d) and(im) authorize the Joint Committee for Review of Administrative Rules, a 10-member legislative committee, to veto administrative rules. Do these veto provisions violate the separation of powers by allowing this committee to block executive agency