Evers Goes for the Knock-Out

Crown Royal, straight up

What once stood as the most important election in Wisconsin for conservatives has suddenly become a distant second.

Once upon a time, last spring’s Supreme Court election stood atop the heap in turning-point elections that would decide the direction of longer-term governance. It was important, as we know all too well. But now—precisely because of that election—the crown of longer-term implication now belongs to the 2026 governor’s race.

For months, I’ve argued that the governor’s race was the prize, but the point bears repeating. With justice Rebecca Bradley out of next spring’s state Supreme Court contest, conservatives face long odds of even holding on to three of seven seats. The court has become a conservative calamity, and let’s all hope that the disappearing voices of reason and liberty on the high court are not analogous to the conservative movement writ large.

The court’s guaranteed poisonous composition renders next spring’s judicial race much less pivotal, though still important, while the governor’s race becomes a contest for the decisive seat of power in the state, and, most important, for control of the regulatory distillery that is the state’s collectivist bureaucracy.

It’s decisive because the aforementioned court has effectively transformed the governorship into a kind of elective monarchy. That phrase may sound like an oxymoron (it isn’t; history is filled with elective monarchies, including the Holy Roman Empire, the Polish–Lithuanian Commonwealth, arguably even the papacy), but it’s easy to resolve the seeming contradiction.

What the Supreme Court did, in reality, was to coronate the state’s sprawling bureaucracy as king. Tony Evers might wear the crown publicly, but it’s a paper crown, and the elected governor is a paper king who bows to the whims of the unelected administrative state and its progressive allies.

He’s a King with a caveat: Voters still retain the power to depose him, or, more correctly, whomever the Democrats want to succeed him. That makes him not a King but a Sir. Well, not even a Sir. A Sort-of-Sir. An honorary title-holder, like a knight, whose principal duty is glad-handing for the bureaucracy.

Still, thanks to the Supreme Court, the executive branch in toto now looms over the other branches, ruling with an authority never before contemplated in Wisconsin’s constitutional structure.

Up in flames

What this is is a constitutional bonfire, and the blaze flamed higher last week when Sort-of-Sir Tony strutted back into court seeking a court order on behalf of the administrative liege. This time, his aim is to eliminate the legislature’s oversight role in administrative rulemaking altogether.

Of course, the court’s earlier decision in Evers v. Marklein II did just that in practice, but, in case Republicans didn’t get the memo—and they didn’t—there he goes again. Simply put, Sort-of-Sir Tony insists that the Wisconsin Supreme Court’s landmark ruling earlier this year already stripped lawmakers of all their ability to hold up agency rules once he approves them.

According to this latest lawsuit, Evers II invalidated as unconstitutional the only statutory provision allowing legislative committees to block or pause rules, a provision that explicitly precluded the promulgation of a rule while it was under the jurisdiction of the Joint Committee for the Review of Administrative Rules (JCRAR).

Armed with that interpretation, Sort-of-Sir Tony directed state agencies to submit 12 rules to the Legislative Reference Bureau for publication, which would give them the force of law. Those rules, ranging from environmental mandates to licensing standards, had the paper crown’s stamp of approval.

The Legislature blocked nine of them, stating that the Supreme Court only struck down the statute allowing JCRAR to pause or block rules, not standing committees, and those nine rules were still under review by the standing committees. The Republican majority on the Joint Committee on Legislative Organization thus directed the Legislative Reference Bureau not to publish them, essentially blocking the rules from taking effect.

And that sent Sort-of-Sir Tony back to court, arguing that the court’s decision in July was unambiguous: Any statute that enables a statutory pre-promulgation pause by any legislative committee is unconstitutional, the lawsuit asserts, because it gives it discretion over which approved rules may be promulgated and which may not. That violates constitutional bicameralism and presentment procedures, the lawsuit declared.

Indeed, the lawsuit continues, no existing statute bars agencies from promulgating final administrative rules pending a legislative committee's review.

“And even if any such statute existed, it would be facially unconstitutional under Evers II for the same reason that [the voided statute] was: a legislative committee cannot have discretion over a pre-promulgation pause without violating constitutional bicameralism and presentment procedures,” the complaint states. “Such a statute would also unconstitutionally intrude on the executive branch’s authority to execute statutes that authorize administrative rulemaking.”

So, irony of ironies, though the statutes allowing standing committee review remain on the books and valid even under the earlier decision, and though the public and the legislature can hold hearings, request changes, and lodge non-binding objections to those rules, they have no power to actually make the collectivist bureaucracy do anything, even should they find that bureaucrats intentionally subverted legislative intent.

Ah, but progressives say, there’s always bicameralism and presentment. Too bad that only means it heads back to the executive to have the final word on what the legislature intended. Wonder what the patsy for the administrative state would decide?

To be sure, the governor’s lawsuit asserts, “the Legislature therefore retains the power to veto, alter, or replace any administrative rule or even change the entire rulemaking process by enacting laws that pass through constitutional bicameralism and presentment procedures. But now that Evers II facially invalidated the legislative veto provisions…., nothing prevents an agency from promulgating a rule once the governor approves it, even if a legislative committee continues to review it in anticipation of possible legislative action by the full Legislature.”

Sort-of-Sir Tony said GOP lawmakers in the legislature were being obstructionists.

A little more complicated, methinks

Republicans don’t think it’s pretty simple stuff, and it’s not.

Assembly speaker Robin Vos (R-Rochester) and Senate president Mary Felzkowski (R-Tomahawk), argued that, while Evers-Marklein II dismantled the JCRAR veto, it didn’t touch the standing committee review—which Evers acknowledges—but they maintain that such jurisdiction implicitly means the rules can’t be promulgated until standing committee review is completed.

Indeed, Vos and Felzkowski said, the court clearly stated that the Legislature “alone maintains the ability to amend, expand, or limit the breadth of administrative rulemaking in other branches [of government].”

“We are following the law and maintaining the fundamental checks and balances of lawmaking,” they said. “The governor is flagrantly disregarding the rule of law and egregiously abusing the power of his office. If the governor’s actions go unchecked, Wisconsinites would no longer have an opportunity for public testimony on rules that carry the full force of law. We will not let this happen.”

To make such an argument stick, conservatives have to overcome two legal arguments. First, as Sort-of-Sir Tony’s lawsuit points out, the command to pause promulgation appeared only once in the oversight process, and that was in the provision that was ruled unconstitutional.

Because the legislature included that explicit preclusion with respect to JCRAR jurisdiction and review, and not with standing committee jurisdiction and review, it could certainly be argued that the legislature did not intend to prohibit promulgation while a rule is under standing committee review.

That’s one way to look at it. The other, more logical way to look at it is that the entire oversight mechanism was a continuous process, and promulgation could not occur until the entire process was completed. In this view, prohibiting promulgation until JCRAR review was completed also meant, by extension, that it couldn’t happen before standing committee review was completed, which is when it passes to JCRAR jurisdiction.

Indeed, the statutes would not make sense under any other reading. Under Evers’s interpretation, agencies would always promulgate rules as soon as the governor signed off on them, right at the beginning of standing committee review under the governor’s reading, so it would be absurd to include a provision precluding promulgation while under JCRAR review. That would simply mean it could not be promulgated because it was already promulgated.

Talk about upside down. Clearly, the legislature intended a single, comprehensive process—standing committee review, followed by JCRAR review, and then promulgation, with the point of the explicit promulgation language being that promulgation could not happen until the entire process was completed.

It would also be senseless to allow promulgation before those public hearings and comments could take place because it would render public participation meaningless. Evers’s lawsuit states that those would still be important to those considering a bicameral bill to present to the governor, but that would put the cart before the horse, the hearings before the bill, and would be a separate and duplicative process.

Of course, as Evers’s lawsuit points out, even if the legislature had inserted the statutory provision precluding promulgation while under standing committee review, that provision would be just as unconstitutional as the one they did rule to be unconstitutional, based on the lack of bicameralism and presentment. After all, the administration argues, bicameralism requires majority support in both chambers and the governor’s signature to have effect—reflecting true legislative and elected official intent, while the previous process allowed a handful of legislators to hold rules written for the people to be held hostage.

Only the captors would be different, the standing committees rather than JCRAR, the administration argues.

The problem for progressives is that they only want bicameralism and presentment in place to stop rules, not enact them. That is to say, they understand how challenging it is to pass a bill through both chambers and get it signed by the governor in times of divided government, which is most of the time. They want only an overwhelming bi-partisan majority that a rule conflicts with legislative intent to be able to stop what the bureaucracy wants, which is virtually impossible.

The advantage is always to the bureaucracy.

In truth, it should be tough to enact a major bureaucratic rule, not block one. Bicameralism and presentment to enact a rule demands a majority conclusion from elected officials that the unelected bureaucracy has done its job to the satisfaction of most of the people’s elected representatives—meeting the most rigorous democratic test—and that the people have signed off that it reflects legislative intent. Without such a majority, it heads back to the shop or to the trash heap.

In other words, requiring bicameralism and presentment to impose a rule on the people is a safeguard to ensure against bureaucratic authoritarianism. It sets a high bar for unelected bosses to clear. Requiring bicameralism and presentment to block a rule, though not to enact one, is a clever sanction of such authoritarianism, requiring only elected officials to clear the high bar while giving bureaucrats a pass.

The duplicity of the progressive position was thoroughly articulated in the dissents of justices Rebecca Bradley and Annette Ziegler in Evers v. Marklein II. The majority’s scheme, Bradley charged, simply makes no sense:

“The majority never explains why the legislative power may be statutorily reassigned to an administrative apparatus without violating the constitution, but the statutorily imposed conditions on such sub-delegation somehow offend the constitution,” Bradley wrote. “There is no principled basis to say the legislature can do one but not the other.”

Bradley—and Ziegler in her own dissent—warned that the majority’s reading not only mangles the constitution and strips away checks and balances but embraces an administrative state the constitution never envisioned. Worse yet, they said, it produces preposterous results.

That is, administrative rulemaking is itself legislative power, Bradley argued, a delegated power but legislative nonetheless, so to remove the legislature’s check on its own delegated authority creates a constitutional puzzle:

The legislature must endure bicameralism and presentment to pass laws, but an executive agency may issue rules without any such crucible and without any legislative oversight of its own power at all. That contradiction, Bradley concluded, has no principled explanation:

“The majority never explains how the constitution can permit the legislature to statutorily delegate its power, but prohibit the legislature from statutorily checking its exercise. There is no principled distinction to be drawn, and no principled basis upon which to uphold one law while striking the other.”

In sum, Evers v. Marklein II misreads state statutes guaranteeing legislative oversight of rules, stands bicameralism and presentment on its head, and allows the legislature to delegate authority but not to oversee that delegation, and the new lawsuit is that decision’s direct descendent, seeking to close any loopholes and dispense with any notion that the administrative state isn’t an unassailable lawmaking agency.

Sadly, this court is likely to agree.

What? Me worry?

Where does all this leave Wisconsin? Is it time to get a little concerned?

With a Supreme Court addicted to radical flights of fancy, there are only two portals back to earth. The first, as I have written before, is the constitutional amendment process. This process sidesteps the governor: If passed in two consecutive sessions, it goes directly to the people.

Constitutional amendments are not to be scattered carelessly across the democratic landscape, like toys in a romper room, but, in this case, they may be necessary to counter a court that is itself amending the constitution through its partisan interpretations and rewriting the law with deeply ingrained progressive prejudices.

I would wager most Wisconsinites would agree with that take and would be eager to finally have some skin in the constitutional game. Hopefully that’s so because a constitutional amendment enshrining the REINS Act looks less like an option and more like a necessity, given the raw authority the bureaucracy now enjoys. Against an unaccountable Supreme Court, the amendment process may be the only effective shield in the years ahead.

The second and more immediate path is political. We must elect a governor and Legislature—and particularly a governor—determined to shrink the bureaucracy to the smallest possible size. In fact, as Trump is doing on the federal level, a new governor must make it his or her mission to relentlessly pursue the dismantling of the administrative state.

As I have also written before, every gubernatorial candidate in the coming race must be pressed, relentlessly and without equivocation, on their willingness to end the power of bureaucratic bosses. Half-answers and rhetorical fog will not suffice.

Until the bureaucracy is stripped of any claim to lawmaking power—until it is reduced to its constitutionally subordinate role, incapable of mischief—it will continue to manipulate the system with its progressive allies. Bradley herself said it best: "The administrative state is a legislatively created creature the constitution never contemplated.” As she put it:

The case before the court now will plow no new ground legally, but it may help set up the political boomerang. We know what the majority will decide, but we also know the gambit could well backfire if a Republican governor is elected next year. Sort-of-Sir Tony is working quickly to secure what the unelected apostles of authoritarianism want and desire most, and to deposit as much power in the unelected administrative state as he can before the people finally stand up and say, ‘Enough is enough.’

When they do, though, the impact could be colossal, given that whoever wins the governor’s mansion will inherit not merely an office but an imperial apparatus.

For conservatives, then, capturing the governorship is no longer a luxury, it is existential. It means not merely dismantling an entrenched administrative order—essentially the opportunity to rebuild government from the ground up—but deconstructing once and for all, through constitutional amendment and strong leadership, the monarchical powers that have accompanied it and have existed in the executive for far too long.

The race for governor is the exclamation point we need to plant behind Evers’s new lawsuit, for that race will decide not just partisan control of the state but the very architecture of governance in Wisconsin.