Wisconsin's Collectivist Bureaucracy: Part IV

Objection! Overruled

Once upon a time—meaning before 2017–Wisconsin’s bureaucratic Colossus, otherwise known as the administrative state, was the most powerful creature in the land.

It did not hesitate to propose rules with massive costs to the private sector, especially small business and property owners. It made new law when it deemed new law to be necessary. It interpreted the statutes it had to implement according to its own policy prerogatives, and it changed those interpretations on a dime.

The bureaucracy did not flinch when it subverted legislative intent. After all, what was the legislature going to do about it?

Prior to 2017, not much. Oh sure, there was a Joint Committee for Review of Administrative Rules (JCRAR), and that committee could object to rules in certain instances, including when the committee felt the bureaucracy had defied legislative intent.

It could yell, but its yell was about as loud as a gunshot in space. The force of its bullet could be felt, but the impact was that of being hit with a blank.

That’s because, prior to 2017, the committee could only issue what is called a regular or temporary objection. Once the committee objected, a bill had to be filed and enacted to support the objection. That is to say, the JCRAC could object, but that objection had to be supported by both chambers of the legislature and then signed by the governor. If that didn’t happen, the objection died at the end of the legislative session, and the rule could, and almost always did, take effect. It was called a passive review process because the legislature was empowered only to block rules, not to require them to be affirmed before taking effect.

Which turned out to be almost impossible. Democrats rarely object to administrative state rules—indeed, along with rent-seeking big businesses, they are most often the architects of administrative regulations—so when Democrats controlled one or both chambers of the legislature, or when a Democrat was governor, successful rule objections were rare. The days of Jim Doyle and Tony Evers have been dark days indeed for those worried about bureaucratic power.

Even when the Republicans controlled all of the government during the Scott Walker years, sustaining an objection was difficult because, frankly, some Republicans themselves were too cozy with special interests who wanted the rules. And because of the passive rule process, they could let the agency take the heat for an oppressive rule and never be held accountable.

Congratulations! It’s an Indefinite Objection!

Then came 2017. Then came passage of the so-called REINS Act (Regulations from the Executive in Need of Scrutiny) and a tool that lawmakers never before had: the indefinite objection.

Unlike a regular objection, when the JCRAR indefinitely objects to a rule, that rule cannot be promulgated unless a law is enacted authorizing promulgation. And the objection doesn’t expire at the end of the legislative session, hence the name indefinite objection.

Conservative lawmakers say it has been a godsend in corralling the administrative state in Wisconsin, and so does Scott Manley, the executive vice president of the state’s largest business association, Wisconsin Manufactures & Commerce, who tells MacIver that the law has had a major impact.

“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 was before the Act.

“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.”

Sadly, the days of the indefinite objection—the very heart of the REINS Act—could be numbered. Progressives have mounted a challenge to the law, saying the legislature is encroaching on executive branch authority to implement state law through rule promulgation. The state Supreme Court has now accepted a petition for original action, and, with a 4-3 progressive majority that has tended to rule reflexively via hard-left ideology, the indefinite objection is in dire straits.

It would be a major loss, Manley says: “We could be losing a hugely important and consequential check and balance against the administrative state with that case.”

Seeing Through an Ideological Lens

As reported in the last story, there’s no question the REINS Act has been effective to some extent, and also no question that the threat of an indefinite objection has calmed the aggressiveness of the bureaucracy to pursue certain rules, even if it’s not possible to quantify the deterrence.

But there are also occasions when the JCRAR has felt compelled to actually impose an indefinite objection, and the state agency has withdrawn the rules as a result. One such occurrence took place this year over continuing education requirements for optometrists. On a 6-4 vote, the JCRAR indefinitely objected to a rule provision that would have allowed one hour of “cultural competency or diversity training” to count toward the 30 hours of continuing education required every two years.

In other words, DEI training was allowed to count as part of the curricula requirements that optometrists must complete to stay up-to-date in the profession, and conservatives protested.

Rep. Clint Moses (R-Menominee) was one of them, as a member of the Assembly Committee on Health, Aging and Long-Term Care, which objected to the rule prior to JCRAR’s later objection.

Moses said the DEI training was inappropriate and weakened professional standards.

“Our health professionals want to spend their required continuing education time in learning about new techniques, technological advancements, and medical information to better serve their patients,” Moses said. “Nowhere in state statute does the legislature direct the Department of Safety and Professional Services (DSPS) and give authority to the optometry board to use continuing education to promote cultural competency and diversity training. Continuing education is for advancing practitioners skills and knowledge, not some political DEI training.”

Moses said the legislature had made it a top priority to combat the prescription drug and substance abuse epidemic in the state by passing legislation and providing funding because overdose deaths from prescription drugs in Wisconsin were on the rise, and yet DSPS wanted to cut in half the number of hours for learning responsible prescribing of controlled substances for optometrists.

“DSPS is showing they do not take the issue of opioid abuse seriously, and are more concerned with ideology than saving Wisconsin lives,” he said. “Our job as legislators is to make sure agencies and boards stay focused on subject matter and operate within their authority when creating administrative rules. DSPS’s Optometry Continuing Education rule was an overstep.”

For its part, DSPS asserted in a hearing on the rule that, quoting Hippocrates, it was more important to know what sort of person has a disease than to know what sort of disease a person has.

Yikes. That’s pure discrimination and pure DEI, spewed by DSPS legislative liaison Mike Tierney, who also said optometrists had a “right” to a “one hour course in culturally competent care” and have it count toward the requirement. Fortunately, also testifying at the hearing was Cicero Action, an activist group that pointed out that such terms as ‘culturally competent’ were ideological terms.

“‘Cultural competency’ and ‘diversity training’ are pleasant-sounding, yet they are highly loaded ideological terms,” the group testified, “Cultural competency can amount to adopting beliefs about our population as being composed of groups of oppressors and groups who are oppressed. It eliminated the importance of individuality and boils individuals does to their race and sex.”

Whatever the merits of the argument, the committee withdrew the controversial rule provision after meeting with JCRAR and the amended rule, sans cultural competency, was enacted.

Now, For The Main Event

There are two other significant objections, and, not surprisingly, those are at the center of the Supreme Court case.

One was a temporary objection by JCRAR blocking efforts by DSPS to define therapy techniques that seek to change a person’s sexual orientation or gender identity—conversion therapy— as unethical. The JCRAR failed on a 5-5 vote to indefinitely object, but then voted 6-4 to make a temporary objection, which lapsed about a year later at the end of the legislative session without a vote being taken on a bill to kill the rule.

And so DSPS promulgated the rule. Once they did, JCRAR acted again in the next session, this time suspending the rule itself, which also required enactment of a bill to support the suspension. Predictably, the bill failed to pass, and also without a vote.

The bottom line was, the DOJ is arguing before the Supreme Court, the multiple suspensions by JCRAR without ever taking any votes on bills to sustain the objection and the suspension amounted to legislative overreach.

“During the more-than-four years between when the Board first submitted the proposed rule to JCRAR in February 2020 and when the temporary suspension lifted in April 2024, this rule was in effect for less than six weeks,” the DOJ brief to the high court states. “The Legislature never voted to pass a bill blocking the rule or presented such a bill to the Governor for his signature or veto.”

In other words, the ongoing and repeated use of standard objections and suspensions is in effect an indefinite objection, and the indefinite objection is really what the administrative state wants to do away with, both by use of multiple objections and suspensions and through its pure application.

And its pure application is the target of the second issue in the Supreme Court case, an indefinite objection issued by JCRAR of a rule by DSPS revising Wisconsin’s commercial building code.

In its argument to the Supreme Court, DOJ maintains that such “legislative vetoes”—a loaded term all by itself—are facially unconstitutional for two reasons.

“First, such vetoes violate constitutional bicameralism and presentment requirements,” the brief states. “When the legislative branch alters the legal rights and duties of others, it must pass a bill through both houses and present it to the Governor. JCRAR’s vetoes have that exact effect, since they alter the legal rights and duties of those outside the legislative branch.”

And, second, the DOJ argues, JCRAR’s vetoes intrude on executive authority.

“When the Legislature enacts a statute that grants rulemaking authority to an executive agency, the agency exercises core executive power in carrying out that statute,” the DOJ argues. “JCRAR’s ability to block this core law-execution power is invalid.”

Even if rulemaking were instead viewed as a shared power, the administration is arguing, the Legislature still cannot act through a committee outside its lawmaking function, and it cannot block the executive branch from acting.

Of course, the DOJ conveniently omits that five out of seven of those steps are all controlled by the executive branch, so there is no checks and balances to ensure fidelity to legislative intent, and it fails to point out that, even in the other steps—the legislative council report and the public hearing—the legislature still has no formal input until it arrives at the committee of jurisdiction and JCRAR levels of review. So the legislature’s kick at the can at the end turns out to be the legislature’s only kick at the can; what the DOJ is arguing for is the complete elimination of legislative oversight.

The truth is, far from the legislature overriding a rule that has been relentlessly vetted, it is merely waiting its own turn to vet the rule, and does so with the advantage of staff reports and public comment, as well as executive branch reasoning. Far from overreach, the JCRAR approval process seems the just finale to a democratic process—the right to affirm that the executive branch has appropriately used rather than abused the power the legislature has given it.

But, to the DOJ, somehow the ability of the executive branch to determine for itself what the legislature intended is a core power.

In fact, the rule at hand shows how easily the administrative state can abuse its rulemaking authority if give unfettered ability to bypass legislative oversight. As mentioned in the last article, WMC’s director of tax, transportation and legal affairs, Evan Umpir, showed just how absurd the agency’s cost estimates of its proposed rewrite of the commercial building code was: The 54-page rule would have imposed “hundreds if not thousands of pages of standards and changes,” and yet the agency’s EIA’s estimated implementation cost to businesses and individuals was $0.

As in zero: “This estimate is inconceivable,” Umpir wrote.

The Legislature’s Reply

Most sensible people would agree that part of the legislature’s job is to confirm that the administrative state has adequately and appropriately done the job the Legislature gave it to do, and the Legislature, represented by Misha Tseytlin, argued just that in constitutional separation-of-powers terms in a brief submitted in early December.

In the brief, Tseytlin observed that the court, in Martinez v. DILHR, unanimously held that the authority of the Legislature’s JCRAR to suspend agency rules was constitutional because rulemaking—the power to make legally binding requirements—is primarily a legislative power.

“As this Court later explained in applying Martinez in Service Employees International Union, Local 1 v. Vos, ‘when an agency promulgates a rule, it is exercising a legislative power,’” he wrote. “‘Because this capability [to make agency rules] is only on loan [from the Legislature], agencies necessarily remain subordinate to the legislature with regard to their rulemaking authority.’”

To be sure, the DOJ in its arguments acknowledged the Martinez case, arguing that it was wrongly decided and urging the justices to overturn it.

“Petitioners now ask this Court to upend retroactively decades of the Legislature’s broad delegation of legislative rulemaking authority to administrative agencies, which delegations the Legislature never would have granted if it could not rely upon Martinez’s unanimous blessing of JCRAR’s oversight authority over rulemaking,” Tseytlin wrote. “They also request that this Court end the provisions that briefly pause the promulgation of specific rules while the Legislature decides whether to act on them. It would be a grave affront to the separation of powers and interbranch comity for this Court now to overturn Martinez and invalidate the crucial JCRAR oversight upon which the Legislature relied, while otherwise leaving those delegations of legislative power to administrative agencies in place.”

The power of the legislature to disapprove and void any rule is deeply rooted in Wisconsin tradition, Tseytlin wrote, sketching that history back to 1953 when “the Legislature first codified its power to disapprove and void any rule by joint resolution.” And that oversight only grew with time, he argued.

“The unparalleled growth of administrative rulemaking over subsequent years sparked increased legislative scrutiny to temper agency overreach,” the brief stated. “As the Speaker of the Assembly remarked in 1964, ‘[t]he set of administrative rules is a bigger set of books than the statute books.’ Another lawmaker lamented that agencies had engaged in ‘backdoor law making’ by promulgating a rule that, when in the form of a bill, had failed to receive legislative approval in multiple sessions. And some agency rules seemed ‘purposeless or outright illogical,’ according to the JCRAR chair from 1975 to 1982.”

For example, Tseytlin wrote, an agency rule had denied an adoption to a couple on the grounds that they were “obese.”

And so it was when the JCRAR found that the DSPS economic impact analysis of its commercial building code rule was wildly off and would inflict increased costs onto a rapidly inflating property market.

Tseytlin again reiterated the Martinez decision.

“Beginning with the separation of powers, Martinez explained that an agency’s rulemaking power is a ‘[l]egislative power’ that is ‘delegated’ to the agency by the Legislature,” he wrote. “ … Agencies have ‘no inherent constitutional authority to make rules,’ and what ‘rule-making powers’ they do have by statute ‘can be repealed by the legislature.’ Martinez then explained that ‘[i]t is appropriate for the legislature to delegate rule-making authority to an agency while retaining the right to review any rules promulgated under the delegated power.’”

Tseytlin homed in on the crux of the entire case, again quoting Martinez.

“It is ‘incumbent on the legislature, pursuant to its constitutional grant of legislative power, to maintain some legislative accountability over rule-making,’ as this ensures that ‘the people of this state, through their elected representatives, will continue to exercise a significant check on the activities of non-elected agency bureaucrats,’” he wrote.

And that is what is at the heart of the DOJ case here—to once and for all remove the check on the activities of non-elected agency bureaucrats that has guided Wisconsin’s democratic governance for close to a century.

Tseytlin also swatted down another straw argument, namely, that the Legislature cannot derail rules without passing and the governor signing specific legislation to do so, namely, the DOJ’s bicameralism and presentment argument that encases the passive nature of administrative rule review.

Because a rule has the force and effect of law and alters the legal rights and duties of others outside the legislature, so the administration’s argument goes, changing the rules also alters those rights and duties and thus requires bicameralism and presentment.

But that argument overlooks that rules are not laws, or shouldn’t be, Tseytlin argued.

“Moving to bicameralism and presentment, Martinez explained that JCRAR’s suspension of a rule need not comply with ‘bicameral passage’ requirement or ‘the presentment clause’ in the constitution,” the brief asserted. “Although the power to issue administrative rules is a delegated legislative power, ‘[i]t is understood that an administrative rule is not legislation as such,’ which is enough to avoid bicameralism-and-presentment requirements.”

Not least, objecting to a proposed rule certainly would not require bicameralism and presentment because a proposed rule is just that—proposed—and does not yet have the force of law. In sum, the legislature argues, far from being a “core power,” rulemaking is delegated legislative authority.

“Petitioners argue that JCRAR’s objections … unlawfully amend the scope of power delegated to agencies, and therefore affect a change in law,” the brief stated. “But this misunderstands that an agency’s rulemaking power arises from the Legislature delegating such power in a law subject to and defined by the conditions placed on it by the Legislature. Here, the Legislature’s delegation of that power was tied to JCRAR oversight from the outset. Stated differently, the Legislature’s delegation of its rulemaking authority is not severable from JCRAR review.”

What Now?

Unfortunately, none of those arguments might now matter given that an ideological and aggressively progressive majority controls the state Supreme Court.

The WMC’s Manley said the loss of the indefinite objection would not only represent a loss of checks and balances over specific rules but would be abrasive to democracy itself.

“It would be corrosive to self-governance,” he said. “And that’s what I think our country is supposed to be all about, is that we, the people, are going to decide what the government does and doesn’t do. But if we’re cut out of the lawmaking process and we just hand it off to unaccountable bureaucrats, it’s not we the people anymore.”

For his part, one of the co-chairmen of the JCRAR, Rep. Adam Neylon (R-Pewaukee) has hope that the court will make the right decision.

“I’m optimistic that even with the way the court is structured, that it will ultimately err on the side of checks and balances,” he told MacIver recently. “And that is what our side represents. It’s checks and balances in the system. We have the power because the rulemaking process is within the legislature’s domain, and then, if we want to modify rules in which that rulemaking process operates, that should be within our right to modify the rules.”

Just as the governor has the ability to veto the legislature’s work, Neylon said, the indefinite objection on the other side helps preserve the balance of power.

“If the Supreme Court takes away those same abilities, like our indefinite objection, then that limits our ability to veto policies that the executive branch or the administrative agencies are putting upon us, and that is lopsided in terms of the balance of power,” he said. “And that’s why I just have to believe that they’ll see that having some sort of balance and preserving some sort of legislative intent would make sure we keep integrity and belief in the system so it doesn’t feel like one side controls and makes all the rules and controls the outcome.”

As we enter the new year, some clarity emerges from the fog of the past six years under a Democratic administration. A picture emerges of where we are and where we are headed.

First and foremost, the state’s collectivist bureaucracy is bigger than it has ever been, with more than 165,000 restrictions covering virtually every aspect of life, and it continues to grow at an alarming pace, imposing restrictions at the rate of 3.4 a day.

The Colossus also retains a voracious appetite for power and a Democratic administration in Wisconsin has unleashed its worst impulses. The bureaucracy remains persistent in its ambitions, spending untold and unimaginable amounts of time thinking of ways to undermine democracy and subvert the will of the people, not to mention to cause general distress among the population.

Manley puts it this way: “Some of the lawless sort of creativity that these agencies undertake, imagine if it could be put to use for something positive. They are very creative. Sure, you can use the top of your boathouse, but you can’t build stairs to it.”

And when a resistance does emerge from the people, such as the REINS Act, that creative obstructionism becomes even more fervent, as agencies mask their desires beneath an array of pretexts—the need to comply with federal mandates or with “settled science,” or the production of fiscal estimates of compliance and implementation costs that range between zero and moderate, but that are rarely deemed excessive.

And now, with a mechanism in place for restoring the legislature’s proper place in lawmaking, the state ramps up its lawfare operation—the progressives’ favorite way these days to assert their power—and tries to strip away any remaining challenges to its hegemony through an ideological and compliant court.

That they might get away with it is frightening.

That we can still win the day is reassuring. If Donald Trump can survive a massive lawfare operation resulting in 34 felony convictions and still become president, our state can and will survive a bad Supreme Court decision, if that is what it turns out to be. Indeed, as with the lawfare against Trump, judicial overreach against representative government might backfire spectacularly.

To be sure, the REINS Act, and the indefinite objection that is so crucial to its success, is a vital part of any attempt to shrink the administrative state to its proper role, but, even if it survives, it is but a first step. Other reforms are needed, and pursuing and articulating those reforms in earnest—especially now with a friendly administration in Washington—is vital as we head into the last half of this decade.

The good news is, the true nature of the administrative state, the malignant Colossus that it is, has been exposed, and the mission to reclaim our government is well underway.