Even a casual observer
could conclude the relationship
between the Republican legislature
and the Democratic governor is
dysfunctional In Wisconsin,
long stretches where they don't talk
to each other, lawsuits, vetoes
and end arounds to get their
ways.
Now, the very balance of power
between the legislature and the
executive branch is in the hands
of the Wisconsin Supreme Court.
With a series of cases having
to do with whether administrative
rules can be effectively
vetoed by the legislature,
it's a lot to unpack and here to do
it. Senior political reporter Zach
Schultz, who joins us from the
Supreme Court. And hi, Zach.
Hello, Fred.
So first, describe the
kinds of rules and over what
that we're talking about.
Well, the particular cases the
Supreme Court heard this week.
One of them was a rule about
building codes.
And another rule had to do with a
ban on conversion therapy,
which is a type of therapy that
tries to convince LGBTQ
people that they are actually
straight people.
And the state wanted to ban that.
And it's a committee in the
legislature that Jay Crocker, the
Joint Committee for the Review of
Administrative rules.
The small committee with just a
handful of members that can
eventually put a hold on any of
these rules coming out of
administrative agencies and
stopped them from taking effect.
And when they do that, it's in
effect, a legislative veto over
administrative power.
And the Supreme Court is trying to
weigh whether that's too much
whether that's actually allowed
under the Constitution.
And where that balance of power
should reside.
So what has the Republican majority
joint committee on review of these
rules been able to do with some of
ivar's authority to
set various rules?
Well, they basically been able to
put them on hold.
They have various authority.
When a rule goes into place,
they can call the committee into
action and they can hold the rule.
They can suspend it for a short
amount of time, or they can suspend
it for up to the full two year
legislative cycle and then come back
into the next session and suspend it
again, which effectively creates a
permanent suspension of the
rule. All they have to do is
introduce a bill in the legislature
that would overrule the rule
and that gets put on the table, gets
held. Never has a hearing committee
goes nowhere. And effectively the
rule suspended.
The ban on conversion therapy, for
instance, was first introduced in
2020 and it's only
been in effect for a handful of
weeks over the nearly five years
since then.
Because JKR keeps coming in and
suspending it. It's in effect for
the moment right now.
But starting tomorrow, Jake
can come back into session and put a
hold on that rule and then it'll
be suspended for as long as they
want, possibly the next two years.
So a potential swing vote
on the court in the way of justice.
Brian Hagedorn said during oral
arguments that this decision
is especially consequential
for the operation of government.
Describe how.
Well, the kind of goes back to the
bedrock of how we create laws.
A legislature could pass a law.
The governor can veto it if the
governor signs it often.
The law is broad, and then their
agencies, the DNR
or the Department of Health and
Family Services, they have to create
rules that carry out how those laws
apply to businesses and people
throughout the state.
Those rules effectively have the
power of law behind them, and
often they can become very granular
and specific, and sometimes it takes
years to promulgate or create
that rule and put it into place.
But then this legislative committee
can come back and veto
that rule and to send it back and it
goes nowhere.
So it's a legislative veto on
administrative power.
If the Supreme Court decides that
that no longer applies, then
the rules from the administration go
into effect essentially with the
power of law.
And that could reshape what
the legislature writes into their
own laws. And that balance of power
of how the two branches of
government work together.
So is the Rules Committee allowed
such power under the Wisconsin
Constitution or other
court case precedent?
Well, the one that they're looking
at the most is a core Supreme Court
decision from 1992 called Martinez.
And the question is whether they
should overturn that rule or just
adjust it slightly, because the
power of J for this committee did
grow in the Walker era.
He gave them more expansive powers
to hold and suspend some of
these rules for longer.
But even Hagedorn, in his
comments from during oral argument,
said that there really is no basis
for this relationship in the
Constitution, as he called it, a
gentlemen's agreement between the
two branches of government of how
they would go about doing it.
Because since 1992,
when the legislature has created
laws, they've done it with the
understanding that when it comes to
creating rules under that law of how
it would be applied, the legislature
would have some sort of say over
what those rules said.
And that could shift what kind of
laws they write and what how all
laws are interpreted under rules.
So this court could
change the current balance of
power as we know it.
Absolutely.
Fundamentally change, especially the
way that the makeup has been
in the six years we've had with
Governor Evers in power, with
Republicans in control of the
legislature. So.
Certainly the next two years going
forward, but fundamentally beyond
the timescale, is this because if
they change the way this works,
then that's a Supreme Court
decision, just like Martinez was on
the books for 30 some years.
This could be on the books for
generations to come.
Future administrations, either
Republican or Democratic governors
and legislatures of either party,
would be under the same system,
having to figure out how does it
apply? How do they write a law and
how do they create a rule that
is fair for everyone?
So the court this morning also
released a decision on whether the
names and addresses of people deemed
incompetent to vote should
be made public.
What did they do with that case?
Essentially, the Supreme Court
punted it back to the court of
appeals.
It's kind of a convoluted case.
The essence of it is whether a
conservative voter interest group
could get access to the records of
all those voters, all those people
in the state that are deemed
incompetent to vote,
and whether they could then check
those names against the voter
registration rolls to determine if
someone was voting on their behalf,
if they're not supposed to be a
court of appeals. And Madison said,
no, you don't have you don't have a
right to those. Those are privacy
issues. A second court of appeals
in Waukesha, a conservative one,
said, no, we think you have a right
to vote.
The Supreme Court kicked it back and
say you can't overrule one Supreme
Court, one appeals court.
Do it right and then we'll decide if
we take the case properly.
So for right now, they don't have
access to those records.
That's the status quo for the
moment.
All right. Well, thank you.
Thank you for all your reporting
from the Wisconsin high court.
Excellent.
Thank you.
Feeling just a little bit there.
Thank you. Wow.
Look at you.
You should get the the Golden Gavel
award.
I got that once.
Yeah, well, you can get
it again. Yeah.
Thank you. Have a good weekend.
Be safe.
Yep. Yep.
So, four mountain lions.
Now that we know they exist.