Liberal Justice Jill Karofsky pressed an attorney for GOP lawmakers to justify a handful of lawmakers repeatedly suspending a rule seeking to ban conversion therapy, a practice she called “beyond horrific.”

After reading a description of the treatment during oral arguments Thursday, Karofsky demanded a justification for allowing some members of the Joint Committee for Review of Administrative Rules to prevent implementation of an Evers administration proposal to essentially ban the practice. 

“I’m saying there are real lives that are at risk here,” Karofsky said, adding, “This is hurting people.”

As GOP attorney Misha Tsteylin sought to answer Karofsky’s questions, conservative Justice Rebecca Bradley interjected.

“Counsel, what is left of the rule of law if this court makes its decision based not on the Constitution, not on the law, but on our visceral personal, emotional responses to what policies the Legislature may be attempting to enact or resist?” she asked.

The court on Thursday heard arguments in the Evers’ administration challenge of oversight powers the Legislature has granted the JCRAR. 

The committee indefinitely blocked commercial building code rules promulgated by the Department of Safety and Professional Services and suspended for more than three years the rule the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board issued that served as a de facto ban on conversion therapy.

Conservative Justice Brian Hagedorn described the JCRAR process as a “gentleman’s agreement” that isn’t neatly spelled out in the Wisconsin Constitution. Still, he also noted overruling the process would mean reversing years of precedent the court has set, calling it the most consequential case he’s seen in his five years on the bench.

The current rulemaking process includes multiple steps from the guv’s administration proposing a framework to submitting it to the Legislature for review and then publication. The JCRAR then has the power to halt rules from taking effect.

The committee can meet and take executive action to introduce legislation in each house of the Legislature to support the objection. If the bill becomes law, the agency can’t promulgate the rule unless a later law expressly authorizes it to do so.

The committee can also indefinitely object to a rule. The agency then can’t move forward unless specifically authorized by the Legislature.

Hagedorn asked where it would be appropriate to draw a line between a temporary pause and a permanent one.

“I don’t know how to handle that if there’s no text to work with or structure that I’m pointing to,” he said.

Tseytlin conceded the Evers administration’s strongest argument is its challenge of JCRAR’s power to indefinitely suspend a rule. Still, he argued for a middle ground that would give the Legislature a window for temporary suspensions, particularly since the Legislature has ceded some of its authority to the executive branch in allowing agencies to create rules. 

“If they can give that power to administrative agencies, they can give a sliver of that sort of power to JCRAR,” Tseytlin said.

At one point, he said it would be a “bait and switch” for the court to previously uphold the committee’s review power as part of that tradeoff but then to later strike it down.

“I don’t care what the rule is,” liberal Justice Rebecca Dallet said. “The constitution is the constitution. If it gets violated for one second or two months or three months or six months, it’s a violation.”