Progressive-era Bureaucratic Power Returns to Wisconsin

Every generation has to win freedom again

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out, such as a 1953 law to allow the legislature to disapprove of and void a rule by joint resolution, which was repealed in 1955 after being deemed unconstitutional.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.

Submission inevitably leads to torture

To grasp what is going on, and to get a sense of what must be done, the overarching constitutional principle at stake must be probed. Let’s start that analysis with, once again, an insightful dissent from justice Rebecca Grassl Bradley.

As an aside here, Bradley is up for re-election next spring, and, given recent statewide election trends, that’s going to be a tall order. If she loses, the court’s progressives would expand their majority to 5-2, and that would signal the start of a long cold winter indeed. Bradley announced a bid for re-election in April, though some reports have speculated she might be rethinking that decision. Let’s hope that’s not true, for she is the one conservative who can, with great flair, frame for voters the consequences of an extremist judiciary.

No matter what, though, her dissents will give a future conservative court a playbook by which to rebuild constitutional governance, when finally that day comes, and this dissent will rank among the most important of them.

In the dissent, Bradley wastes no time getting to the fundamental issue: “The majority invokes the Wisconsin Constitution to take power from the People’s elected representatives in the legislature and bestow it on the executive branch, empowering unelected bureaucrats to rule over the People.”

Progressives like to protest against “kings”—unless it is one of their own making, Bradley declared. And she points out that the court’s majority establishes certain necessary conditions for lawmaking only on the legislature and not on the entities making law through delegated power from the legislature.

“Although administrative rules have the force and effect of law, the majority holds the legislature to the constitutional prerequisites for lawmaking—bicameralism and presentment—but lets the executive branch exercise lawmaking power unfettered and unchecked,” she wrote. “Nothing in the constitution sanctions such a sidestepping of the legislature’s exclusive lawmaking authority. Nowhere in the constitution did the people of Wisconsin consent to be governed by rules imposed by the administrative state rather than laws passed by their elected representatives.”

Bradley explains that we’re in this boat in the first place because the legislature created the administrative state, which it could not do constitutionally, and then delegated some of its lawmaking powers to it, which it also could not do.

“Of course, it is the legislature that created the problem in the first instance by statutorily creating an administrative state the constitution never contemplated,” she wrote.

She also cited court decisions such as Slinger v. Henneman that underscored the inability of the legislature to delegate its lawmaking powers: “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.” Every so often over the past century the legislature has also attempted, albeit feebly, to reverse the constitutional betrayal, as in 1941 when a bill was introduced that would have prohibited all administrative rulemaking and repealed the rules that did exist (Duchek, above). It went nowhere.

Later court decisions happily went along with the existence of the administrative state and its acquisition of lawmaking authority, Bradley wrote: “Like other courts, however, our supreme court decided it was acceptable for the government to override the People’s choice to disperse powers among three branches, tamper with the structural separation of powers to accommodate a fourth, and erase the non-delegable nature of the constitutional grants of power.”

Torture eventually leads to homicide

The tortured application of the idea of bicameralism and presentment by the majority leads to a form of constitutional murder.

Indeed, Bradley argued, the decision thrusts the high court into lawmaking itself. It rewrites not only the legislature’s self-restraints on its sub-delegation of powers but the constitution, too: “The majority rewrites the constitutional text to strangle ‘legislative action’ while unleashing unconstrained executive rule, exposing the people to the very nightmare against which [James] Madison warned.”

In fact, if one really wants to be technical about it, and of course we must, bicameralism and presentment don’t even apply in this situation, Bradley argues.

“The majority says, ‘legislative action that alters the legal rights and duties of persons outside of the legislative branch triggers the requirements of bicameralism and presentment,’” she wrote.

That last point is critical because it speaks to the check on the power of the unelected bureaucracy. Bradley observes that the Martinez decision legitimizes the administrative state but also stresses the need for legislative oversight because it is a delegated power.

“In reaching its outcome, the majority preserves the ‘cooperative venture between the legislature and administrative agencies’ blessed by this court in Martinez v. Department of Industry, Labor, and Human Relations, under which the government subjects the people to unconstitutional rule by bureaucrats,” Bradley wrote. 

“The majority, however, discards the inconvenient parts of the bargain struck by the legislature and the executive, under which the legislature ‘retain[ed] the right to review any rules promulgated under the delegated power.’”

Bradley didn’t quote it all, but the Martinez decision made the need for that oversight a necessary condition:

The whole scheme of the current majority lacks logic, Bradley asserts: “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. There is no principled basis to say the legislature can do one but not the other.”

What’s more, Bradley (and justice Annette Ziegler in her own dissent) argued that the majority’s interpretation—besides misreading the constitution, besides removing constitutional checks and balances, besides embracing an unconstitutional administrative state—leads to absurd conclusions.

“Given that administrative rulemaking is the exercise of sub-delegated legislative power, the majority does not reconcile the constitutional conundrum it creates by erasing the legislature’s check on the executive’s use of the legislature’s power,” Bradley wrote.

Ziegler pointed out another inconvenient truth about the majority’s reasoning, if followed to its logical conclusion.

“The principles the majority applies in this case, if applied equally to all branches of government, would render administrative rulemaking unconstitutional,” Ziegler wrote. “Administrative rulemaking authority, as this court has held for nearly a century, is delegated legislative power. Rulemaking is essentially legislating done by the executive branch. But administrative rules do not go through the constitutional procedure of bicameralism and presentment. Accordingly, under the principles laid out by the majority, administrative rulemaking would be unconstitutional.”

Notably, Ziegler wrote, if the court applied the principles it espouses consistently, there would be no need for JCRAR to oversee administrative rulemaking: “There would be no administrative rules to review. Equal application of the principles applied to the legislature would seem to spell the destruction of the administrative state as we know it.”

Of course the majority doesn’t like following the trail to its logical conclusion.

“But the majority makes clear that the executive branch is exempt from the constitutional constraints the majority strictly applies to the legislative branch,” she wrote. “Such one-sidedness coming from a court cannot be condoned.”

There’s another couple of points that should be made about legislative oversight.

The first is, assuming for the sake of argument (and only for the sake of argument) that the delegation of lawmaking authority to the bureaucracy is constitutionally valid, it is only valid insofar as the agency writing the rule adheres to statutory intent.

The legislature not only has a right but an obligation to confirm that adherence to law, and it is thus up to the legislature to set the terms of oversight as it transfers such power. Just as the legislature allows a major rule with compliance costs of $10 million or more over two years to be promulgated only after a bill is enacted and passed, so too JCRAR review and approval is a legislatively set standard. Both function to establish when rulemaking authority is triggered.

That is to say, proposed rules that surpass the $10 million threshold for promulgation are nothing more than bureaucrats’ daydreams, akin to a trip they’d like to take but can’t afford. Likewise, a proposed rule that is met with an indefinite objection is nothing more than a gleam in the administrative state’s eye. There’s no actualized authority before the legislature to bicameralize or present to the governor. It’s a proposal that only the legislature should be able to bring to life.

What’s more, both the fiscal impact and objection criteria explicitly give any legislator the right to give it life by introducing a bill to move the rule forward, regardless of cost or indefinite objection. At either point—the lifting of the indefinite objection or with the introduction of a bill by any legislator—lawmaking is afoot, and bicameralism and presentment kicks it. The statutes in question in the case are not only constitutional, they fit seamlessly into the constitutional framework that has operated for years.

Or, to simply say things the easiest way: All laws passed by the legislature require bicameralism and presentment, and so should all laws passed by the bureaucracy. Fair’s fair, and constitutional’s constitutional, and that, by any other name, is called the REINS Act, which the court just gutted.

Why not trust the “experts”?

There’s an easy answer to that question: The experts are probably wrong more than the average person you pick out of the phone book. Unfortunately, phone books don’t exist anymore, but experts do. If only the reverse were true.

Here’s even worse news: While not all experts are bureaucrats, all bureaucrats are experts. Just ask them. They know better than you. So expect now the bureaucrats to be riding high with this decision, writing rules only experts would write and forcing them down everyone’s throats.

All we have to do is look at history, and in that regard there is a case that serves as a poster child for a rogue bureaucracy hell-bent on writing a rule to subvert the law.

Flash back with me to 2003. That’s when the legislature passed Act 118, named the Job Creation Act because it created a three-tier system for regulating development projects along lakes and rivers. Under previous law, all projects required an individual permit and DNR review; Act 118 exempted some activities from the permitting process unless they were proposed for trout streams or other sensitive waterways.

The idea was to expedite the permitting process on non-sensitive waters and speed up development projects and thus job creation.

Naturally, anything designed to create jobs and promote prosperity was opposed by environmentalists, and so they were incensed by the bill, which they urged then Democratic Governor Jim Doyle to veto.

Much to their (and everyone else’s) surprise, however, Doyle signed it (there ain’t no telling where the money went), and that incensed environmentalists even more. So they got to work lobbying the state Department of Natural Resources (DNR) to write rules that would undo the damage the legislature had done. It’s pretty clear what they wanted—a rule that would basically restore the previous law. They wanted the DNR to effectively repeal what lawmakers had passed and the governor had signed.

All their arguments were equally absurd. The Sierra Club insisted that new rules were needed to “fill in gaps” in the statute. The new rule was simply a bridge, in other words, between intention and definition. The legislature meant for the bridge to exist, the Sierra Club argued, it just forgot to build it. The Wisconsin Wildlife Federation was even more straightforward in its approval of the rules the DNR wrote: “DNR staff have recommended to the Board that they adopt a detailed set of emergency rules that restore many of the protective standards that were deleted from the statutes in Act 118.”

And there you have it. The key words are “restore many of the protective standards that were deleted from the statutes.” In other words, they wanted the agency to repeal the offending portions of the act. They wanted the DNR to write a new law. Of course they can want what they want. The problem is, the DNR happily obliged them, crafting 12 emergency rules that might as well have been penned in the Ivory Tower of the Sierra Club, a sweeping rule excluding virtually every water body in the state from the more lenient permitting provisions of Act 118.

What they wrote was a bureaucratically divined law that would supersede the democratically enacted state statute.

Thankfully, the agency did not get away with that scheme. After all, Democrat Doyle had signed the bill into law, and he effectively kiboshed it. There’s no way the rule would have survived even a temporary objection, and so the agency went back to the drawing board. But it demonstrates just how conniving the federal bureaucracy can be, and that’s why the bureaucracy can never be trusted to self police.

So what if something similar happened now? What would happen if a similar situation arose with a woke governor who has committed to commandeering 30 percent of the state’s land and water by 2030.

Let’s use Stewardship as a hypothetical. Supposedly, lawmakers are working on another grand compromise for the fall, which, if the budget bill is any indication, will sell out property owners and property rights throughout the state and especially in the Northwoods. A compromise is not out of the question because Democrats are eager to save Stewardship, and Republicans are just as eager to let them do it, so long as Democrats throw them some tiny bone they can sell as a win.

So let’s say they reach a grand compromise tilted toward environmentalist interests and Evers signs it, and then the DNR gets busy writing rules to implement the new law and in the process they interpret the grand compromise in such a way that undermines even the slightest protections for taxpayers and property owners.

You know, they come up with language that “fills in gaps” that surely the legislature didn’t intend to leave out, or they write regulations that “restore many of the protective standards that were deleted from the statutes.” In other words, let’s say they delete the Republican part of the compromise.

Under the rules that existed last week, the JCRAR could indefinitely object, and the objection wouldn’t expire at the end of the legislative session. Lawmakers would have leverage to bring the DNR to the table to enforce the compromise—to enforce the law actually enacted by the people’s representatives. In fact, in an interview I conducted late last year for the MacIver Institute with Scott Manley, the executive vice president of the state’s largest business association, Wisconsin Manufactures & Commerce, Manley said the indefinite objection was the centerpiece of regulatory reform known as the REINS Act.

“With the indefinite objection, we have a significant piece of leverage at the end of the rulemaking process in the legislature,” Manley said. “I’ll tell you what, the indefinite objection has brought agencies to the table to negotiate in ways that we’ve never seen before.”

They negotiate now, Manley said, because they are afraid, and that’s a much different scenario than it used to be.

“It used to be, for instance, when we would ask the DNR (Department of Natural Resources) to change a rule before it went to the board [Natural Resources Board], they wouldn’t do it,” he said. “Then the rule would go to the board and they’d adopt it, and it’d go to the legislature.”

Then the legislature would ask the agency to make changes, and there would be a familiar response, Manley said.

“They wouldn’t do it,” he said. “They wouldn’t do it because they knew they could wait until the end of the session and it would become law no matter what. Now they’re actually motivated to negotiate.”

Not anymore. If the DNR goes wild with a Stewardship rule—or any agency with any rule—they can’t be stopped.

What to do? With a radical Supreme Court there are only two paths to a freer tomorrow. One is through the constitutional amendment process. This process doesn’t involve the governor; it can be sent to the voters by passing the legislature in two consecutive sessions.

I’m not a fan of pursuing constitutional amendments willy nilly; they should be reserved for major issues. However, I see no issue more important than stopping unelected bureaucrats from making laws that impact our daily lives, and I’m betting that a majority of Wisconsinites would agree. A constitutional amendment enshrining the REINS Act seems to be a must give the raw power the bureaucracy now has. Given that we are now fighting an extremist Supreme Court that is unaccountable, the constitutional amendment process might be the only way to fight back for the foreseeable future.

That leads to the second way: Electing a governor and a legislature to eliminate as much of the bureaucracy as is humanly possible. Every gubernatorial candidate next year should be grilled and vetted relentlessly over their commitment to slay the bureaucratic colossus, with no B.S. allowed.

As I wrote recently, until we unequivocally strip the bureaucracies of any lawmaking power, and unto we whittle the administrative down to a size where they can do no harm, the bureaucracies and their progressive allies will find ways to manipulate the system. The only true way to control the bureaucracy is to eliminate it, at least most of it.

As Rebecca Bradley pointed out in her dissent this week, the administrative state is unconstitutional, period, a legislative creature the constitution never contemplated: