The Legislature That Isn’t

Legislative bulletin: Gravity is real

It has been a week of revelation and consequence in the Wisconsin legislature.

First came long-overdue recognition by the GOP that the state’s Stewardship program is not so much an environmental initiative as a land-acquisition scheme whose incentives are misaligned with representative government. It is less conservation than conveyance to special interests.

Then came something that could prove even more significant. Rep. Brent Jacobson (R-Mosinee) and Republican colleagues introduced measures that do not merely seek to restore legislative oversight of bureaucratic rulemaking but would return lawmaking power itself to the branch where the Wisconsin constitution says it belongs.

The lawmaker’s package—with a serious if not complete nod to the doctrine of nondelegation—contains two essential elements. The first would amend the state constitution to allow the legislature to either temporarily or indefinitely suspend administrative rules by passing a joint resolution. The second would repeal a broad grant of authority to state agencies to create rules or regulations interpreting statutes, even if the statute does not grant rulemaking authority, and replaces that with a requirement that state agencies must have specific and explicit statutory authority to promulgate a rule.

Both are super important, though the difference between them might be described as the difference between a health inspector and a certified chef. The inspector signs off on the product on the back end or sends it back; the qualified chef actually bakes the cake and chooses the ingredients on the front end. The first is a necessary but not sufficient condition of representative democracy; the latter limitation on who can be the chef —the legislature—satisfies both conditions.

Accordingly, Jacobson’s proposals should be headlines, not the footnotes the left-wing press is treating them as.

Over there, between the hedges of a barely sane media, there has been no shortage of news stories in recent weeks about the coming November elections and the battle for control of the state legislature. Republicans are fighting to hold the Assembly. Democrats are making an all-out push to flip the Senate. It is a good bet right now that each party will succeed.

Whatever the outcome, writing about Van Wanggaard’s fate or flipping Rob Hutton’s seat is a lot sexier than writing about the administrative code, and, for the leftist-controlled propaganda ministry, it certainly is more ideologically profitable.

But there is an uncomfortable truth that isn’t being articulated in the ideologically manufactured manifestos that pass as Madison and Milwaukee journalism, and that is, in the areas of government that most directly affect people’s daily lives, such as the economy and taxes, it’s not going to make much difference who controls the legislature next year, or the year after that, or the year after that.

No, I’m not saying the two parties are the same. They could hardly be more different. And, yes, I’m being hyperbolic in a way. These contests are real, consequential, and worth serious attention.

To be sure, if Democrats hold at least one legislative chamber, Republicans cannot send Jacobson’s constitutional amendment to voters. Democrats could and would also pass legislation that is nefarious in its own right. True, too, that a Republican governor willing to assert control over the bureaucracy—as presumptive GOP nominee Tom Tiffany would be—rather than act as its protector can control rulemaking priorities and stop the most egregious bureaucratic edicts. Not least, a conservative governor won’t encourage or propose leftist rules that consolidate authoritarian power.

All of that is true in the short term, and so everyone should vote. But it is also beside the point in one sense because the upcoming legislative elections are akin to a symbolic consultation of the people in a non-binding straw poll. This is the administrative state’s dirty little secret: Sadly, right now the Wisconsin Legislature is functionally no longer the legislature, and those elected to it are virtually powerless stand-ins for the state’s real lawmakers.

They will not make most of the rules—laws by another name—that govern daily life. Bureaucrats will write those instead in back-room cubicles and in special-interest conference rooms. Don’t believe me? Right-wing disinformation? Consider that there are many more pages of rules, orders of magnitude more, than pages of statutes, all barking out orders with the force and effect of law.

What the fake media once labeled as right-wing delusion was, in fact, cemented last year as publishable case law with the Wisconsin Supreme Court’s 4–3 decision stripping the legislature of any meaningful oversight over administrative rules. By prohibiting the Joint Committee for the Review of Administrative Rules (JCRAR) from suspending or indefinitely objecting to agency rules, in most cases because the rules flout the will of the people, the court did not merely injure institutional protocol; it transferred government power and transferred it absolutely.

In effect, the bureaucracy became the official lawmaking body in Wisconsin state government, validated by a general grant of rulemaking interpretive power from the legislature itself. The legislature can and does still act, but at some point, most statutes must be and will be reinterpreted and translated into real-life law by the administrative state. Some of the laws will pass muster; many will not. Then, as with all progressive gaslighting these days, what plainly is will no longer be, what plainly is not will suddenly become so, and what citizens see and hear with their own eyes will be dismissed as misunderstanding, misinformation, or malice.

Obey the interpreter, in other words, not the author.

As long as the Legislature is not the state’s true lawmaking body, Wisconsin does not have representative democracy in any meaningful sense. An election here or there might offer up an anomaly or two, but the trajectory is toward contests for seats in a branch of government that has already surrendered its core function. That is deeply flawed, counter to our republican principles, and undermines the very purpose of elections. It is a subversion of democracy, a coup-d’etat of the constitution.

Jacobson and his colleagues want to fix that.

The Real Crisis: Delegation Without Limits

Ultimately, last year’s Supreme Court decision stripping JCRAR of power, as bad as it was, was not the real problem. It was just the cherry on top of what decades of legislative abdication had already produced. For years—under governors and legislatures of both parties—Wisconsin statutes have handed agencies vast, open-ended authority to “promulgate,” “administer,” and “interpret” laws, often without meaningful standards or criteria. Lawmakers have invited agencies carte blanche not just to fill in details, but to define policy.

It’s not just Wisconsin. This has been true in almost every state and at the federal level, too. Shame on all of us for letting it get so out of hand.

Jacobson’s legislation is important because it recognizes—implicitly but unmistakably—that the problem begins on the front end, not the back end. Oversight after the fact matters, but it is no substitute for constitutional restraint at the point of delegation. The question is not whether delegation is wise, but whether it is sanctioned at all.

Jacobson’s two proposals address both ends.

As stated, the first, Assembly Joint Resolution 133, would pass a constitutional amendment enabling the legislature to suspend or repeal administrative rules by joint resolution. This directly responds to the Supreme Court’s decision and would reestablish a basic check on executive rulemaking, making sure it adheres to legislative intent. That’s the necessary after-the-fact oversight.

The second proposal, AB 955, is more fundamental. It repeals a broad statutory authorization allowing agencies to promulgate rules even when statutes do not explicitly grant rulemaking authority. In its place, it requires specific, explicit legislative authorization.

That begins to address the heart of the problem. It is a course correction requiring lawmakers to explicitly confer rulemaking authority, but it is also an implicit tiptoe toward the non-delegation doctrine, or the long-established notion that no branch of government can delegate a core constitutional function to another branch. The legislature makes the law and lays out what the bureaucracy can do with it. This bill does not go all the way to non-delegation, but it takes a decisive step in that direction by taking away the broad ability of agencies to interpret on their own what the legislature meant—lawmaking by any other name.

That delegation should not be allowed is so obvious—because it renders the delegating branch increasingly superfluous—that it should not have to be stated. But we do have to say it, because progressives hate the non-delegation doctrine and trash it at every turn, precisely because it thwarts the administrative takeover of the whole of government.

Non-Delegation is Non-Dead

In the modern context, the non-delegation doctrine is all about preventing the complete subsumption of our republic by the administrative apparatus.

At the federal level, U.S. Supreme Court chief justice John Roberts recognized the dangers of delegating so much power to the administrative state more than a decade ago. In 2013’s City of Arlington v. FCC, the Supreme Court essentially gave federal agencies the authority to determine the scope of their own jurisdiction when they were challenged.

The vote was 6-3, with some conservatives acceding to the blunt transfer of power by applying the Chevron doctrine of due deference to federal agencies based on the agency’s own assertion that Congress had given it interpretive authority. Back then, the issue was judicial abdication masquerading as “due deference,” and Roberts challenged the notion seriously.

“A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference,” Roberts wrote. “Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.”

On the particular question, Chevron is now defunct at the federal level, but, in his dissent, Roberts addressed the larger point of delegation of raw power, at least its application if not its validity. In deciding the case, he contended, the backdrop of the proposed augmentation of agency power should be considered, especially when the outcome would let agencies decide for themselves when and what powers Congress had given them.

“And yet . . . the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating,” Roberts wrote. “And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching.”

The court’s duty to police the boundary between the legislature and the executive was as critical as its duty to respect that between the judiciary and the executive, Roberts wrote, adding that he was concerned that the courts would enable the administrative state to declare for itself when Congress has delegated lawmaking powers to it:

That trend of power accumulation has become a trademark of modern American government, Roberts wrote.

“Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter, they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules,” he wrote. “The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.”

The Framers could hardly have envisioned today’s “vast and varied federal bureaucracy,” and the authority administrative agencies now hold over our economic, social, and political activities, Roberts continued.

“It would be a bit much to describe the results as the ‘very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed,” Roberts concluded.

The chief justice’s cautions about aggregating bureaucratic power are hauntingly prophetic, but he missed a fundamental point: the delegation of power to the administrative state is unconstitutional in the first place, whether Congress has delegated it or not.

Missing that point is where the trouble really starts.

Can’t give that thing away

In Wisconsin, in 2020’s Wisconsin Legislature v. Palm, then-justice Daniel Kelly, writing in a stirring concurrence, did not miss that vital point. Kelly’s argument was blunt: the Legislature cannot give away its core power even if it wants to because it lacks the constitutional authority to do so.

And that’s just what the statute that Jacobson’s bill targets did—it gave away the legislative farm, lock, stock, and barrel. The only thing state lawmakers did not give away were their salaries.

Kelly understood how disastrous that was.

“The border between the legislature and the executive is maintained, or at least it once was, under the aegis of the non-delegation doctrine,” Kelly wrote. “There are some who say this is a dead letter. If that describes the doctrine’s vitality in Wisconsin, it is not because we never recognized it or outright rejected it, but because we allowed it to fall into desuetude. To the extent that has happened, we have been derelict in our duties.”

Speaking to the true source of Roberts’s concerns, Kelly wrote that the operative principle was not that the branches should not delegate their core authority, but that they could not.

“This principle is a matter of power, not of prudence,” he wrote.

It is for that reason the legislature cannot alienate even a sliver of its core power, even if it consciously intends that end, Kelly wrote.

“Not because it would be unwise, or imprudent, but because those who created the legislature gave it no power to do so,” he wrote. “Therefore, prohibiting the legislature from transferring its authority to the executive ‘isn’t about protecting institutional prerogatives or governmental turf.’ Instead, ‘[i]t’s about respecting the people’s sovereign choice to vest the legislative power in [the legislature] alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law.’”

In the constellation of constitutional doctrines, Kelly asserted, that serves as one of the central organizing principles. Without it, he wrote, the constitution would be an incomprehensible jumble.

“But just because the legislature cannot pass off its powers to the executive doesn’t mean it won't sometimes try,” he wrote. “Even though the authors of our constitution designed it to maintain equilibrium amongst the branches through its internal system of checks and balances, and by arraying ambition against ambition, it has always been apparent that aberrations might arise.”

And when an alleged aberration—and that is exactly what that provision of general law governing administrative procedure for state agencies is—comes before the court, Kelly contended, the justices do not have the luxury of shrugging off the duty to discern whether a border incursion has occurred.

Kelly cited Gorsuch in saying that there are three principles by which to guide an inquiry into non-delegation.

First, the legislature must affirmatively require that statutes include clear policy determinations, not aspirational language: “The first is that ‘as long as Congress makes the policy decisions when regulating private conduct, it may authorize another branch to ‘fill up the details.’ But the filling up must truly comprise details. So legislation must set forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.’”

Second, the application of the rule must depend upon executive fact-finding; and third, the legislature may assign the executive and judicial branches certain non-legislative responsibilities: “That is to say, a statute may require the executive to apply authority already resident in the executive branch to the matter addressed by the statute.”

Meaning, the executive branch can only figure out what happened in the real world and apply the rule according to clear statutory standards, not interpret those standards. And it can only use the power already vested in the executive branch to investigate, enforce, or apply the law, if specified by the statute.

Jacobson’s bill is a good start, but more is needed. It removes language allowing agency promulgation and interpretation without explicit and specific statutory authority, but it leaves open the door that the legislature can still cede that interpretive authority if it chooses, which is still ceding lawmaking. It lands in Roberts’s orbit rather than in Kelly’s.

A better, amended bill would tackle and incorporate those specific criteria outlined by Kelly in the Palm decision. He has given us a roadmap; we should follow it. To honor the non-delegation doctrine as Kelly and Gorsuch articulated it, legislation must do more than repeal one broad grant of interpretive authority; it must slam shut the door on all agency interpretation and then clearly delineate how precise standards are to be developed within statutes, what interpretations are to apply, how later ambiguities will be resolved (that’s where the back end comes in), and exactly how the executive branch can apply and enforce any implementing rules.

Ultimately, progress will not be measured by how many rules the Legislature suspends. It will be measured by whether statutes over time once again outnumber regulations—by whether law is made where the constitution says it must be made.

If Jacobson’s legislation ultimately reflects the fundamental principles of non-delegation, Wisconsin can be representative again. And progressives would get their most recent wish: There would be no kings in Wisconsin. Not in the courts and certainly not in the bureaucracy.

But unless voters and lawmakers act to restore constitutional balance, we may find ourselves governed by rulers we never elected. That is a future worth preventing, before the reign of the regulatory kingdom becomes irreversible, and likewise our enslavement to it.