(The Center Square) – The Wisconsin Supreme Court is clarifying the balance of power between Gov. Tony Evers and the state’s Republican-led legislature. And that means most of Wisconsin’s lame duck laws will stand.
The court issued a sweeping set of decisions Thursday that deal with four specific lame duck laws, and the question of “guidance documents.”
A 5-2 majority of justices agreed that the legislature did not overstep its bounds in writing new laws that deal with Capitol security, the suspension of administrative rules, deference to agency policies, and requiring the attorney general to get legislative permission to settle lawsuits.
Justice Brian Hagedorn wrote in his majority opinion that limits on the attorney general is part of the legislature’s “shared powers.”
“The question in this case is not whether the legislature may give or take powers away from the attorney general; it may,” Hagedorn wrote. “The question is whether the legislature may participate in carrying out the executive branch functions previously assigned to the attorney general. Or said another way, the question is not whether the legislature may circumscribe the attorney general’s executive powers, but whether it may assume them, at least in part, for itself.”
Hagedorn explained further.
“While representing the State in litigation is predominately an executive function, it is within those borderlands of shared powers, most notably in cases that implicate an institutional interest of the legislature,” he noted.
That the legislature, which has the power to spend money, would need to spend money on settlements, Hagedorn said, gave the legislature its shared power.
Attorney General Josh Kaul said the court has sanctioned a legislative power grab.
“Legislative Republicans demonstrated open hostility to outcomes chosen by Wisconsin voters and made it more difficult for state government to function effectively,” Kaul said.
Kaul said future courts could change the ruling.
Senate Majority Leader Scott Fitzgerald said the court made the right decision in deciding how government should work, regardless of who is in power.
“Today’s ruling is a victory for the Legislature and all Wisconsinites who want to hold government accountable,” Fitzgerald said. “A rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives.”
But the court’s decisions were not a total victory for legislative Republicans.
Outgoing conservative Justice Dan Kelly ruled against them in their desire to force Evers to clear his “guidance documents” with lawmakers first.
“[Guidance documents] are not law, they do not have the force or effect of law, and they provide no authority for implementing or enforcing standards or conditions,” Kelly wrote. “They simply ‘explain’ statutes and rules, or they ‘provide guidance or advice’ about how the executive branch is ‘likely to apply’ a statute or rule. They impose no obligations, set no standards, and bind no one. They are communications about the law – they are not the law itself.”
Evers liked that part of the ruling.
“From the lame duck laws and challenging my veto power, to Safer at Home and holding an unsafe election this past April, clearly Republicans are going to continue working against me every chance they get, regardless of the consequences,” Evers said in a statement.
There is still one ruling pending. The Supreme Court will deliver an opinion on Friday that will decide just how much power Wisconsin’s governor has to veto laws, or portions of laws, passed by the Assembly and Senate.
Benjamin Yount reports on Illinois and Wisconsin statewide issues for The Center Square. Reposted with permission.