Brina Godard is a staff lawyer at the State Democracy Research Initiative at the University of Wisconsin Law School and has submitted a brief by Amichi Curiae. Eversv. Marklein On behalf of a group of legal scholars.
The Wisconsin Supreme Court last month attacked several powers over the actions of executives.
For years, Wisconsin has been an outlier in how powerful its legislative committees can exert. From the proposed block of administrative rules, a small group of lawmakers could exercise a strong veto on the way the state governed, until the agency decided whether it could use the funds already allocated. In recent years, Republican-controlled legislative committees have used these powers to reject environmental grants, rules for prohibitions and management of conversion therapy.
In October 2023, Governor Tony Evers (d) filed a direct challenge to these powers with the Wisconsin Supreme Court. Eversv. Marklein. The court first addressed only whether the Legislative Committee could deny spending funds already allocated to the Wisconsin Department of Natural Resources Environmental Protection Program.
Known as 6-1 decision for 2024 evers i), the court broke this legislative veto on the site of this legislative veto, writing that “the power to use funds allocated in accordance with the laws enacted by Congress is within the core power of the enforcer to ensure that the law is faithfully enforced.” The court also said, “The veto clause undermines democratic governance by circumventing a legislative process that requires the participation of the whole of Congress, and crams the committee with a controversial, controversial, and therefore politically expensive position.”
The court left a second question open about whether the Legislative Committee can unilaterally block administrative rules. July, Indians Evers IIthe court answered a negative question to the question and found that legislative veto power over administrative rules violated the bilateralism and presentation requirements of the Wisconsin Constitution.
Specifically, two rules that the Legislative Committee has blocked for many years, one banning conversion therapy by licensees of state therapists and social workers, and the other updating the state’s commercial building codes. The plaintiffs presented facial challenges, arguing that the veto of the Legislative Committee should be completely invalidated under the state constitution, and that the long suspension of these particular rules was unconstitutional, even if the challenges applied could survive by circumstances. In a previous decision, the state high court had allowed the Legislative Commission to temporarily suspend or block administrative rules for several months, but concluded that permanent blocking without enacting new laws is unconstitutional.
in Evers IIthe court dismissed these previous decisions and concluded that it was unconstitutional for the Legislative Committee to temporarily block rules without enacting new laws. In a 4-3 decision written by Chief Jill Karovsky, the court adopted the formalist approach of the US Supreme Court. Insv. Chadha“Legal measures that change the legal rights and obligations of people outside the legislative sector raise dimerism and presentation requirements.” Using this rule, the Wisconsin Supreme Court has broken a set of laws that allow the Legislative Committee to temporarily or indefinitely block proposed or promulgated administrative rules without going through the full legislative process.
Judge Brian Heggone agreed with some, adding his fifth vote to the conclusion that the Legislative Committee’s opposition to the proposed Building Standards Rules is unconstitutional given its indefinite nature. However, he opposed the broader ruling, arguing that deeper questions about administrative rulemaking were “inadequately addressed by the parties and the majority,” and therefore the court should not have reached a facial challenge.
Justice Rebecca Bradley and Annette Ziegler were totally opposed. Invoking the doctrine of non-decision, Bradley argued that the administrative rulemaking itself violated the principle of separation of power, which corresponds to an unconstitutional delegation of the power of the law. Ziegler criticized the majority for applying the principle of separation of power inequally to Congress and Enforcers.
Evers II Decision-making shows a significant change in Wisconsin’s administrative rulemaking process and restores the authority to create rules under state law without facing veto from members of the Legislative Committee. While Wisconsin’s rulemaking process continues to be subject to widespread procedural requirements and judicial review, legislative changes to agency rules must follow constitutional valid channels, such as traditional oversight and statutory revisions. The court’s decision makes Wisconsin more lined up along other states. The courts overwhelmingly conclude that legislative veto violates their respective constitutions.
The impact of the decision may exceed the specific authority that lies in the issue of this case. Over the past decades, Wisconsin Legislative Commissions have gathered dozens of powers to control the actions of administrators. In 2023, for example, one committee maintained an already approved cost-of-living salary increases for University of Wisconsin employees amid the fight over university diversity, equity and inclusion spending. In another case, in this condition, the Supreme Court of Wisconsin unanimously withdraws the Joint Committee on the Right to Approve the Finance Committee for certain types of Wisconsin Department of Justice settlements, concludes that pre-approval requirements violate the constitutional separation principles. Additionally, the Finance Committee alone had 120 individual approval or veto powers as of 2023, some of which have since been in vain. evers The decision suggests a major impact on these and other legislative committee rejections, and shows a major change in how Wisconsin government will function in the future.
Suggested Quote: Brila Giver, Wisconsin Supreme Court breaks down legislative vetosᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (August 6, 2025), https://statecourtreport.org/our-work/analysis-opinion/wisconsin-supreme-courts-strikes-down-legislative-vetoes
