It is no secret that the educrats in Madison are no fans of oversight or transparency. A few years ago they went all the way to the Wisconsin Supreme Court in order to carve out their agency from additional oversight that the legislature placed on all state agencies. Currently, the Wisconsin Institute for Law & Liberty is suing Superintendent of Public Instruction Tony Evers for ignoring other rulemaking transparency and oversight requirements enacted by the Legislature that he does not want to apply to him.
The latest, and perhaps most egregious, move by the educrats in Madison is to try to make regulations by relying on the authority from the federal government – and not the people of Wisconsin. This would be effectively evading state law, such as the REINS Act meant to curb state agency regulatory power, and create nearly limitless power for the Department of Public Instruction (DPI).
It should be common knowledge that our state constitution vests the power to write laws in the legislature. Recognizing that lawmakers cannot establish every policy or regulation that may be necessary to implement the laws they enact, our legislature has delegated a small piece of its lawmaking powers to administrative agencies. This limited delegation is known as rulemaking.
When bureaucrats in Madison use that delegated authority to write rules that have the effect of law, they rightfully have to follow state law. Those laws, set forth in Chapter 227 of the statutes, ensure that rules are written in the light of day and with adequate public notice, that the resulting regulations are within the limited delegation of authority to the agency from the legislature, and ultimately, that the legislature gets the final say if the rules can move forward.
In their most recent affront to following the law as written, DPI claims that the legislature delegated its authority to the agency to write regulations to comply with the Every Student Succeeds Act (ESSA).
But state law requires the delegation of authority to be explicit and the Department fails to identify such a mandate. DPI argues that because state law says that it is the agency to accept federal education dollars, and because federal law requires that if states accept those dollars they must impose certain federal requirements, DPI must be able to impose whatever of those federal requirements it wants upon the people of Wisconsin.
This is an incorrect, and frankly, dangerous, application of the state law. Under DPI’s flawed interpretation of their own power, they can essentially impose any regulations they want, so long as the regulations are necessary to obtain and distribute federal education dollars. The regulatory power of DPI under that situation would be virtually limitless.
Fortunately, like all state created agencies, DPI gets its power from the people of Wisconsin – not the federal government. Wisconsin law is very clear that an agency cannot rely on a general grant of power, like the power to receive federal dollars, to write regulations. DPI’s attempt at drafting regulations for ESSA accountability – that will impact every public school and district in the state – cannot rely upon their own wrong interpretation of a vague grant of power.
What does all this mean? It means that DPI’s attempt to hand over state education policy to the federal government is illegal. DPI has no explicit authority to write these new regulations and impose this new accountability system on the students and teachers here in Wisconsin. If DPI is allowed to move forward with this rule, it would set a new precedent that any state agency that receives federal dollars would be able to impose whatever new conditions on the people, schools and businesses of Wisconsin that the federal government wants. Wisconsin would be hollowing out our state sovereignty.
The state legislature is certainly within its right to provide oversight to DPI. Alternatively, if DPI continues to push forward with this lawless regulation, they will very likely find themselves, yet again, in court evading oversight and trying to claim that our state laws do not apply to them.
Lucas Vebber is Deputy Counsel and Director of Regulatory Reform and Federalism for the Wisconsin Institute for Law & Liberty.