A split state Supreme Court today overturned the Legislature’s power to suspend administrative rules, ending decades of lawmakers having the power to at least temporarily block agency regulations.
In a 4-3 decision, the court found the statutes giving those powers to the Joint Committee for Review of Administrative Rules violate the Wisconsin Constitution’s requirement of bicameralism and presentment, which mandates any law to pass both houses of the Legislature and be presented to the governor.
During oral arguments, conservative Justice Brian Hagedorn said overruling the process would mean reversing years of precedent the court had set. He called it the most consequential case he’d seen in his five years on the bench.
The ruling stems from a challenge Dem Gov. Tony Evers filed to two actions by JCRAR: indefinitely blocking commercial building code rules administered by the Department of Safety and Professional Services and suspending 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.
>> WisPolitics is now on the State Affairs network. Get custom keyword notifications, bill tracking and all WisPolitics content. Get the app or access via desktop.
Chief Justice Jill Karofsky wrote the majority opinion and was joined by fellow liberals Ann Walsh Bradley, Rebecca Dallet and Janet Protasiewicz.
Conservatives Rebecca Bradley and Annette Ziegler each wrote dissents.
Meanwhile, Hagedorn dissented from the court’s ruling overturning JCRAR’s powers, though he believed the committee had unconstitutionally suspended the building codes indefinitely. He argued the court should’ve focused on that narrow issue and not overturned JCRAR’s powers. Hagedorn also noted the committee’s suspension of the administrative rule on conversion therapy had lapsed and the standard is not in effect, making that argument moot in his view.
The rulemaking process includes multiple steps, from the guv’s administration proposing a framework for the regulation to submitting it to the Legislature for review and then publication. Prior to the court’s ruling, JCRAR had several options to halt rules from taking effect.
It could 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. That option remains even after the court’s decision.
The ruling overturned the committee’s option to indefinitely object to a rule. Under that process, the rule was barred from moving forward unless specifically authorized by the Legislature.
Subscribers can read more in today’s PM Update.
