The Joint Committee for the Review of Administrative Rules, photographed at a Jan. 12, 2023, meeting when the body voted to block an examining board’s ban on conversion therapy. On Thursday the Wisconsin Supreme Court heard arguments in a lawsuit brought by Gov. Tony Evers charging that the commitee’s powers violate the state constitution. (Baylor Spears/Wisconsin Examiner)
For an hour and a half Thursday, lawyers argued before the Wisconsin Supreme Court about how much power should be conferred on executive agencies and on a single committee of the Legislature when it comes to enacting regulations.
The oral arguments were part of a lawsuit Gov. Tony Evers filed attacking the Legislature’s Republican leaders’ “legislative vetoes” that have hamstrung the Democratic governor. The focus was the Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR), which holds broad power to block rules enacted by the executive branch under its regulatory authority.
The Evers lawsuit, filed in October 2023, cited two instances in which the committee thwarted rulemaking.
One was JCRAR’s vote to block a new ethics code for therapists and social workers that declared that the practice of conversion therapy to change the sexual orientation or gender identity of LGBTQ people was unprofessional conduct.
The other was a vote to block an update to the state commercial building code that had been years in the making.
State laws give the executive branch agencies, such as the Department of Safety and Professional Services and the Department of Natural Resources, the authority to establish administrative rules in order to carry out the laws for which they’re responsible.
A series of Wisconsin Supreme Court decisions as well as laws passed by the state Legislature have strengthened the power of the Legislature’s Joint Committee for Administrative Rules (JCRAR) to intervene when rules are enacted. JCRAR can object to a rule after it’s promulgated, either temporarily or indefinitely.
If lawmakers introduce legislation that codifies their objection to a rule, the rule stays blocked for the rest of that two-year legislative session until the bill is vetoed by the governor. In the last several years, lawmakers have avoided a veto that would restore a rule they’re blocking by introducing the legislation and sending it to committee, where it remains dormant for the remainder of the term.
The governor’s case
A recurring phrase in Thursday’s argument was “bicameralism and presentment.” Bicameralism refers to the requirement in the Wisconsin Constitution that to change the law, both houses of the Legislature must pass a bill. Presentment refers to the requirement that the bill, once passed, must go to the governor to be signed or vetoed.
Wisconsin Assistant Attorney General Charlotte Gibson, arguing on behalf of Gov. Tony Evers. (Screenshot/WisEye)
The ability of state agencies to write administrative rules is “executive power” in the service of carrying out laws that have been enacted, said Charlotte Gibson, an assistant state attorney general arguing the governor’s case.
When the JCRAR acts to block a rule, “they change the law,” Gibson said. “They change those rights and duties” of the state agency that have already been granted under state law. But, she argued, “bicameralism and presentment is the very method through which the Legislature has to act when it wants to amend the law.”
In addition, Gibson argued, rulemaking is “a core executive power,” and the way lawmakers have intervened in the process violates the doctrine that legislative, executive and judicial powers are separate from each other.
“The Legislature has to act through its legislative constitutional role in making law, procedurally and substantively,” Gibson said. “It can’t have the power to override the [executive] branch’s exercise of its own constitutional role.”
Gibson said that, on constitutional grounds, the Court should overturn a 1992 decision and five state statutes that together have cemented the committee’s power.
Defending the JCRAR’s power
Representing the Legislature’s Republican leaders, Misha Tseytlin conceded one of the arguments that the governor has made.
Attorney Misha Tseytlin, arguing on behalf of Republican leaders of the Wisconsin Legislature (Screenshot/WisEye)
In their brief on the governor’s behalf, Evers’ lawyers highlighted that JCRAR blocked the therapy rule twice, suspending it for a total of about three and a half years, and that the committee blocked the building code with an “indefinite” objection.
Tseytlin said that the argument against allowing JCRAR to permanently suspend a rule without further action by the Legislature “has some strength” and could be addressed by limiting a suspension’s duration. He suggested that putting a “grace period” limiting suspension to six months, after which a rule would take effect unless the Legislature was able to pass a bill blocking it, would address that objection.
But he defended the rules committee’s power otherwise. By permitting agencies to write administrative rules, the Legislature “is giving away its power to the executive agencies,” Tseytlin said “So that if it enacts a law, that says that in giving away that power to you, we are interposing one of our committees, there is nothing offensive in the separation of powers.”
Tseytlin suggested that under “the original public meaning of the Constitution,” administrative rulemaking was out of bounds entirely, although he added that returning to that original idea is now beyond reach.
“And I’m not standing here, Your Honors, saying that this Court should throw out the entire administrative state — that is water under the bridge,” he said. “But I think it is quite unfair” to question the legitimacy of the Legislature’s efforts to push back on rules.
Rulemaking as lawmaking?
Justice Rebecca Bradley (Screenshot/WisEye)
The idea that rulemaking is a delegation of the Legislature’s power to enact laws, however, was sharply contested.
Early in the arguments, Justice Rebecca Bradley described rulemaking that way, while rejecting its constitutionality.
“You think that rulemaking is an executive function, but the lawmaking power, the lawmaking authority, was given by the people to the Legislature,” Bradley told Gibson. “There’s nothing in the Constitution giving that to the executive.”
Gibson disputed that framing. “When the Legislature passes a statute, they can dream up any public policy they want and make up a law that tries to address that public policy,” she said. “But when the executive branch promulgates a rule, all they’re trying to do is effectuate the statute that the Legislature has charged them to carry out.”
Justice Rebecca Dallet (Screenshot/WisEye)
For Justice Rebecca Dallet, however, the constitutional affront was allowing JCRAR to block rulemaking by an agency authorized to do so under the law, even temporarily. “This structure is a few people who get all the power to make a decision about what happens, to what an agency does with their rulemaking,” she said.
The rules themselves
For most of Thursday’s session, which ran about 30 minutes over the official time limits that had been announced at the start, the lawyers’ arguments and the justices’ challenges stuck to the broad subject of the committee’s powers.
One exception came early, when Gibson pointed out how JCRAR stepped in and blocked the building code.
Gibson said Evers’ lawsuit doesn’t challenge the state’s lengthy legal process for enacting rules — including hearings, public comment and formal approval by a designated body. The building code, for example, went through those steps and was approved by a council of experts empowered under state law for the purpose.
“So all of that is fine,” Gibson said. “What’s not fine is when the Legislature comes in at the end, through a committee, and says, ‘No, actually, the rule’s no good. We’re vetoing it.’”
The second exception came more than an hour in, when Justice Jill Karofsky brought up the specifics of the conversion therapy rule while Tseytlin was arguing for the Legislature’s right to block a rule.
Justice Jill Karofsky (Screenshot/WisEye)
Karofsky quoted from a brief on behalf of the National Association of Social Workers. The association had initiated work on the rule banning conversion therapy, including it in a new ethics code drawn up by the state board that licenses therapists, counselors and social workers.
Although delayed for more than a year, the board reinstated the new ethics code with the conversion therapy ban in 2024 after the Legislature ended its session for the year. Gibson told justices that JCRAR could block it again, however.
The brief describes conversion therapy “as torture,” Karofsky said, “And I think with good reason.” Conversion therapy seeks to lead LGBTQ people “to abandon that identity and adopt and/or exhibit a heterosexual sexual orientation and gender identity consistent with the one assigned to them at birth.”
She recited from a list of tactics included in the brief, including exorcism and “corrective rape.”
“I was a sexual assault prosecutor for decades. I had to look up what ‘corrective rape’ was,” Karofsky said. “It is rape perpetuated by a straight man against lesbians in order to correct or cure their homosexuality. It is basically a punishment for being gay and violating traditional gender presentation.”
“So under your interpretation of the statutes,” she said, addressing Tseytlin, “less than a handful of unchecked legislators . . . can shelve a rule that stops therapists from subjecting children to horrors like ‘corrective rape’ and exorcism. Do I have that right? Because I can’t even begin to wrap my head around that.”
Tseytlin replied first with a hypothetical alternative of a rule mandating “those horrible things,” then returned to his earlier suggestion of simply a temporary waiting period for rules.
Rebecca Bradley took a different approach to the question, however.
“What is left of the rule of law if this Court makes its decisions not on the constitution, not on the law, but on our visceral, personal emotional responses to what policies the Legislature may be attempting to enact or resist?” she said.
SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX