An emergency.
Yeah.
My eyes.
Have.
What else?
Churches now have just.
Yeah.
Thanks, guys.
Well to.
Right.
That's what I.
Wow.
Right.
Right?
Yeah, I.
I thought so.
Yeah.
Right on.
As part of.
I will try and stay.
All rise.
Hearing, Hearing.
Hearing. The Wisconsin Supreme Court
is now in session.
Chief justice in that case, Lynn
Ziglar presiding.
Your filing is commanded.
All right.
Please stand.
Good morning, everyone.
It's nice to have you here today
on oral argument.
This morning, we do have
the Senate scholar
program here.
If you could stand up so we can
acknowledge you.
Right.
I think
Justices Pratasevich and
Dalot are both meeting with you
afterwards. They
didn't arm wrestle and determine who
is doing it. So you get them
both.
Anyway, it's nice to have you here
today.
Go ahead and have a seat.
The case that we call
for this morning is 23
AP 2020.
Tony Evers versus Howard
Mark Klein.
Could I start with your appearances
time?
When?
All right. Good morning.
25 minutes till my 30, followed
by five minutes in rebuttal.
That's the lineup.
There was a motion,
though, that I want to start out
with so we know what.
The plan is today.
It was filed
by counsel for.
The legislature and
hopefully you've had a chance to
look at it.
Okay.
Do you object to the motion?
Do you want to be heard on the
motion
in its entirety?
She's about to.
Speak up, please.
We think it's untimely,
but if the court has questions
about it, we could
ask questions.
If you wish to be heard further.
I'm happy to give
you that opportunity.
Otherwise, we're prepared to
rule on it.
Okay.
All right, then we're going to grant
the motion so it will be admitted.
And you can argue about it at
least then you know where you are
on that. Okay.
All right.
Let's get started.
Attorney Gibson.
Madam Chief Justice, and may it
please the Court.
For over 70 years, the great weight
of authority, former governors,
attorneys general.
Counsel.
I'm going to jump in right at the
beginning, because you certainly.
Presented a multitude
of constitutional challenges.
Correct? That's right, Your Honor.
I think five perhaps,
which is the strongest.
When we have two legal grounds
and they're independent for why all
five statutes are unconstitutional.
We think they're equally strong.
The court could use either or
both of them to decide the case.
But we think all five statutes
are facially unconstitutional under
both doctrines.
And the reason is because we've seen
that consensus of authority for the
past 70 years.
We deviated from that authority
and. Mark Lane.
But our experience since that time,
which has included the Legislature's
creation of even more powerful
vetoes and rules languishing
for years, has shown us
that that consensus was right.
So as I said to Justice Protasevich,
what we're, what's what we're asking
for today, is it that this
court overrule Martinez
and strike those five statutes as
violating both by criminalizing and
presentment and the separation of
powers?
Council rules have the force
and effect of law, correct?
That's correct.
Under 227 or 113.
So I'm understanding your argument
to be that if the legislature
wants to pass a law and
I agree with you under the
Constitution, it must
meet the bicameral ism and
presentment requirements that are
constitutionally prescribed for
legislation.
But I understand your argument to
mean that if the
executive branch wants to make laws,
it can just do whatever it wants
without any checks, without any
balances. And so my question for you
is where in the Constitution
did the people consent to
being governed by laws,
by rules, by regulations
promulgated by the executive branch,
made by the executive branch?
Because I have, as I'm
sure you have studied the Wisconsin
Constitution extensively
with the division of powers
that the people authorized and
gave to different branches of
government. And nowhere do I see
that the people ever consented to
being governed by an administrative
state instead of their elected
representatives in the legislature.
Well, Your Honor, there are a number
of embedded premises in your
comments there, several
of which we disagree with.
First is the Constitution
would purport to create the same
rules of the road for the
legislature and the executive
branch. And as the court said in
China, the the
caramel ism and presentment, which
Your Honor recognizes apply to the
legislature, doesn't apply to
the executive branch.
Second, while rules.
Have been a step in the right there,
first of all, charter and the
rules that it made that
relates to the federal Constitution,
which is different from the
Wisconsin Constitution in this court
has never adopted the
rule made in Chad.
Are you asking the court to do that?
Because we didn't do that the
last time you the
government, were here in Evers
one, as we're calling it, for
shorthand.
Right. So I'd like
to finish my response to your
question and then maybe we could
turn to your your next question.
You may have to remind me because I
may forget the next question.
But second, another premise of your
comment was that a rule
and a statute are the same thing,
but they're not when they're law,
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.
But when 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.
And then the idea the third premise
that was in your comments is I
and I won't get your quotation
exactly right, so I apologize,
but that there are no rules.
No no guardrails
on that. But that's not true.
The legislature can and has
put in a number of guardrails
and our constitutional that limit
the executive branch's discretion
to 2011.
Act 21 is a great example
of something that put in lots and
lots of limits on executive branch's
discretion and how it promulgates
rules.
Well, that's that's where I'm
struggling to see where you're
going to draw the line, because
a logical conclusion
from your argument is that
the legislature, once it
cedes and I understand
your position that you disagree with
me, although you haven't really
explored that in your briefing.
I know you disagree with me.
You think that rulemaking is
an executive function, but
the lawmaking power, the
lawmaking authority was given
by the people to the legislature.
There's nothing in the Constitution
giving that to the executive.
So why can't why are
you saying that?
And I think this is the crux
of the issue here.
Chapter 227 Some
of it's okay.
Some of it is okay for the
legislature to prescribe
the rules by which
rulemaking can occur, but
you don't like some of the
provisions. So where are you drawing
the line? How are you drawing the
line? When is it okay for
the legislature to
prescribe limits on
the exercise of this
lawmaking rulemaking power?
But when is it not?
Okay.
So first of all, your
description of it as lawmaking power
again, I think begs the question
of whether rulemaking is lawmaking
power.
But and even if we describe.
The ability to promulgate rules
as potentially as describable
as legislative while it's sitting
with the legislative branch.
When it's conferred on the executive
branch, it becomes that kind of
power. And it's no different than if
the executive branch were carrying
out the law on a case by case basis.
It's just regularizing its
enforcement and implementation of
law through rulemaking, which
many of the justices, I think is a
good thing.
And I'm sorry, I forgot your next
question. What are the limits?
So the limits are that the that
the many provisions
in 227
today and as I said, some of the
more exciting ones came from act
21 are
all things the executive branch has
to carry out itself.
It has to do a scope statement and
goes to the governor for his
approval.
It stops the DOJ.
It sends the rule to large council
for their review.
And there's public hearings.
There's a whole long list of things.
And as you saw from our statement of
the case in the petition, the two
rules that are examples here went
through a years long process with
tons of feedback, including
from experts from the Building
Council, which is a statutory body
comprised of experts in all parts
of the building field, and that
disperse board, which is people
who are appointed by the governor
and actually confirmed
by the Senate.
So all of that is fine.
What's not fine is when the
legislature comes in at the end
through a committee and says, no,
actually rules no good, we're
vetoing it.
But it's not an after the fact
consideration.
The the ability for the legislature
to do this is built into the
statute as a guardrail.
But I know you disagree with me on
that. But I, I don't know how
this court can decide this case,
Martinez or Martinez,
Whether we overrule that or not
really doesn't decide the issue.
We have to look at what is the
fundamental nature of legislative
power versus executive power.
I don't know how we can decide this
case without answering
that. And for decades, this court
has recognized rulemaking to be
a legislative function that the
legislature and I don't
agree that the legislature has the
power to do that, but they have
given to the executive
branch. So as I'm
reading your argument, you really
haven't asked us to overrule
anything other than Martinez,
but we would have to overrule
decades of cases, including recent
cases where we again reiterated
what this court has recognized for
decades. And Caskey in
SEIU and countless other
cases.
Are you asking us to overturn all
this body of case law?
And really, as I see it,
transform how government
has operated for decades,
if not 100 years in this
state?
Well, I think there are a number of
questions in that question, too.
So I'll try to pull them apart and
answer them individually.
I'm going to offer this court three
different ways that it can decide
this case.
And we recognize that Martinez is
kind of the prop that's propping
them up. So that is important
that the court overrule Martinez.
The first way is to decide the case.
And by cameral ism and presentment
alone, that implicates nine
of justice for back and Bragg and
leaves questions about how
we what the right description of
rulemaking power is, whether it's
legislative or executive.
We know that in men's rights and
duties of people outside
the legislative branch.
And so the legislature has to pass a
bill through both houses and present
it to the governor for his signature
veto that triggers by
cameral ism and presentment.
And Martinez recognize that which
is good. It was a good first start.
Where Martinez went astray is
thinking, well, the committee can
change the law initially and
someday, if we want to make that
change permanent, we'll get around
by camera. Lisbon Presentment
by cameral ism and presentment is
the very method through which the
legislature has to act when
it wants to amend the law.
It's not a security check after the
fact. And if we think about it,
the committee acts, our acts, they
change, they change the law, they
change those rights and duties.
And for that whole period, whether
it's three months or three years and
Your Honor's have seen it tends to
be more of the latter.
The law is changed with no bicameral
wisdom in presentment.
The Constitution doesn't create a
free zone.
There's no there's no there's
no space where the legislature gets
to operate outside the
constitutional constraints.
So bicameral isn't presentment alone
justifies the striking of the five
statutes here.
The second way.
I work, I just want to ask.
Yes, Your Honor.
We're like in like a rushing nesting
doll situation here with your
argument, I realize.
But now you're out by camera.
Was one presentment.
You've talked about Martinez
under that, which is the first
option that you are discussing.
We'd have to overrule Martinez.
Correct.
So our view of the importance of
Martinez is not to
to 2719 five
deem that's the indefinite veto.
And we think even the Martinez court
back in 92 would have said, Whoa.
Not that one.
We also would urge the court to
facially overrule two
2720 62I
am, which is the repeated
suspension law.
Now we recognize that would require
the court to overrule.
Paragraph 78 to 83.
I'm hoping I'm getting the numbers
right. I've got SEIU, which
pretty much relied on Martinez.
I think one of the plaintiffs in the
case you and kind of urge the court
to go that route.
But that that case assume that
you had to wait and see just
how long the repeated
vetoes were applied.
We think that's wrong.
The power to do it repeatedly
is what is
what's relevant here.
Now, what happens with the other
three statutes if you don't overrule
Martinez, we would
ask the court to at least construe
Martinez as having a three month
limit, and the triggering of
the limit would depend on it,
whether it's a suspension, when it
would be triggered by the suspension
itself or an objection
which would be triggered by when the
legislature acquires jurisdiction.
Because for an objection, there's a
longer process.
It also includes a
visit to the standing committee.
Can I just kind of can I just follow
up on that?
Okay. So Martinez had the three
month limit. It was extended to
six months and SEIU.
But you're asking us to overrule
SEIU anyhow
because of two 2720
62I am.
So if we limit this to three months.
We don't have to worry about the six
months in SEIU because
we've already.
Overrule that because of
the indefiniteness of two 2720
62I am.
Am I correct?
Okay.
My question to follow up on that
is why would we
want to even say three months is
okay if you're saying it's a
violation of the Constitution, why
isn't like one seconds too much?
Thank you, Your Honor.
Our our feeling is that by cameral
ism and presentment is violated,
even if it's one day.
And I you know, we cite a case from
the I think the Kentucky Supreme
Court where they said a 20 day pause
was too long by cameral ism.
And presentment, as I said, is the
way the legislature has to act
when it wants to amend the law.
It's not an after the fact
moment when we say, well, after
three years to make something really
permanent, we use it, then that's
not what the Constitution.
How does Martinez survive?
Well, we.
We are strongly urging the court to
overrule Martinez.
I understood your question to mean
if we don't want to.
What could we do if we just.
If I can't convince you.
What's what's the big bad.
Question.
On my part? I understand.
I mean.
I'm even beyond the,
you know, plain constitutional
problems with Martinez and the
rule making problem here.
If you read the case carefully,
you know, I think they say.
Cite A'Hearn three times.
Its whole reasoning, its whole
zeitgeist is just not consistent
with the court's minor in separation
of powers.
That's what I want to talk about
counsel a little bit is your
bicameral ISM presentment argument.
And here's my question to you.
I'm having a very difficult time
seeing any daylight between
your to your two principal
arguments.
That is, it seems to me that
if the argument is.
Once the legislature enacts
a law, the legislature cannot
cannot. Has no constitutional
role in checking
the enforcement of that law
without going through by camel ism
presentment. What you're really
saying is the
legislature can only change the law
by changing the law through the
constitutional method.
Ergo, rulemaking is
a core executive power.
And in other words, I don't know
that if you if you go the by cameral
ism presentment route.
I'm having a difficult time seeing
analytically any distinction
between those two arguments.
It seems to me they're saying the
same thing.
One's asking maybe an indirect
question, but it gets you to the
same spot, which is you're saying
the legislature, the legislature's,
you know, only constitutional
authority after it enacts a law
is to enact a new law, which
is to say any form of rulemaking
that's prescribed by statute must be
left to the executive branch without
a check from the legislature outside
of new lawmaking.
So I kind of see
two different pieces in that
question. And on the first question,
I agree with Your Honor that both
by Camilla Zimmerman presentment and
the separation of powers, whether
we're talking core or shared power,
both have that piece that the
legislature has to act through its
own constitutional tools, which
are lawmaking.
And the piece and the question of,
okay, if that's true, are there
any checks that the legislature has?
It doesn't have a veto check.
It doesn't have this case by case
veto check like Jay Crow currently
has. But there are other things it
can do, obviously, including,
you know, have hearings.
I recognize you can do hearings.
You can, you know, if you want to
subpoena people and as you press
releases and all that stuff, I get
it.
My main question, though, is
analytically, I do not see any
difference between the bicameral
wisdom, presentment argument and the
argument that administrative
rulemaking is a core executive
power. If you answer the first
question, the way you presented it
to us seems to me that the answer to
the second necessarily follows,
and that's just an indirect way of
getting there.
I think at least says it's applying
under the laws At issue here,
that seems to be true.
I guess I'm I'm hedging a little bit
because I'm wondering whether there
could, you know, if this court went
with a shared powers analysis,
for example, would there be ways
that the legislature could
permissibly act through
lawmaking that would
create, you know, different kinds of
constraints on the legislature and
the branch like they have with.
But I think that harmless and
presentment necessarily means it's
not a shared power, because what
you're saying is you can't act
unless a new laws passed.
Ergo, the legislature's role is done
from at least a having an
illegal effect.
And again, that may be correct.
I'm not commenting on the argument
one way or the other. Right.
I'm just trying to figure out, you
know, literally whether those are
two different things.
And seems to me like cannibalism.
Presentment is sort of like a
distracting question.
It doesn't actually answer the
question, as you correctly,
I think pointed out by Campbell's.
And presentment is simply the method
by which the Constitution prescribes
for the enactment of laws.
And so if the argument is the
legislature's constitutional role is
to enact laws and after that,
it can't it can't
tell the executive how to enact,
how to enforce the law it's enacted
without enacting new laws.
Then you're saying.
Rulemaking is a core executive
power.
I think now we I haven't thought
about this before. It's an
interesting idea.
It may be kind of two sides of the
same coin that by commercialism and
presentment is really focused on the
process the legislature uses
where a separation of powers we
think about what are the substantive
powers that each branch has,
but maybe you end up with the same
answer.
Counsel I often
say to
my clerks or others, lead with your
right.
And I'm left handed.
Yes.
Your left.
I'd say to you, Leave with your
left. So what is your left
here
in terms of your argument?
Which one are you advancing?
So as I've said to the court,
I think the last time we were
together, I love consensus.
And I think if the court
can get behind by caramelizing
in presentment more easily because
there are fewer doctrinal issues,
we embrace that.
We do think that, you know, most of
the state supreme courts that have
looked at this question have
rejected statutes just like this
one, these ones.
And both grounds.
And I think it's helpful to keep
cleaning up our separation of powers
doctrine because as this court
saw with the kind of mess that
A'Hearn caused,
as long as we have cases
sitting around like Martinez that
have very different language than
what the court's using now, I think
it causes confusion for
litigants about what are the.
Rules of the court, you indicate?
I have two questions.
You indicate fewer doctrinal
issues if you go
a route of.
The presentment route.
And you also
indicate cases that
in your brief that may have to
be overruled
if you go the separation of powers
right route.
So what do you mean
by fewer doctrinal
issues to deal with?
Right. I think I think and this
one thing I want to really emphasize
about our separation of powers test
is we have both a core powers
analysis, but we also have a shared
powers analysis.
And we strongly believe that
the five statutes here all feel,
even if this court wants to go with
a shared powers and.
Which our view is that would require
only overruling Martinez
and then those derivative paragraphs
and SEIU and I just
want to review the separation of
powers framework that this court has
recognized again and again in its
shared powers test, which is
twofold.
One is the legislature has to act
through its alleged constitutional
role in making law.
Procedurally and substantively,
it can't have the power to
override the other branches exercise
of its own constitutional role.
Well, that's where we have to define
the constitutional powers,
don't we? Counsel again, I go back
to my question to
you, and I don't remember
if you answered it because there
were other interjections, which is
fine, but I don't know
how we answer this question
without determining.
The very nature of rulemaking.
I have written about this
extensively in other cases, so
you know how I see it.
I see rulemaking, as this court
has said, as a power delegated
by the legislature, which
means that if it's in I
again disagree with the the
authority, so-called, of the
legislature to give away the
power that the people gave it.
But setting that aside for a moment,
we have declared over and over
again that rulemaking is
indeed a legislative power,
which thereby therefore
empowers the legislature
to prescribe the manner
in which the executive branch
can create rules.
So I think this idea that it's
purely legislative and not a shared
power is is incorrect.
So you're asking.
Us to overturn.
Those in. Martinez So if
I can answer, Your Honor, but.
Then Counsel, we I do want to hear
you and but please, please
address in your response.
You are then asking us to
overturn case after case
that we where we have said for
decades that rulemaking is a
legislative power.
Now, there's two different
questions. One is whether it's been
described generally as delegated
legislative power, which doesn't
answer the question of what it
becomes when it's conferred upon
the executive branch and
the. There has to be executive
power as part of that shared power
analysis, or Martinez even wouldn't
have said it's a shared power and
the shared power the executive
branch has in rulemaking is exactly
that. It's executing the law.
It's it's it's regularizing
its application and execution
of the law through that rulemaking.
And so at the very least, it has
that piece of the pie.
It's the room, it's a shared power.
Your honors, your honors premise is
that it's essentially solely a
legislative power.
But that and I think that's
inconsistent with your Honor's
writing in Evers one at paragraph
17 to 18, we were.
Talking about rulemaking.
It's true.
But Your Honor said that just
because the legislature gives the
agency's. Their existence in the
process doesn't mean that once those
statutes are created, it can do
whatever it wants to.
To them.
And it's a completely different
context.
I think.
An analogy, a very good
analogy to that is this rulemaking.
They've given them the power to
regularize their application of the
law through rulemaking, and that's
the executive branch is now, even if
it's a shared power, the legislature
still can't have the power to
veto the.
The executive branch's application
of a law that way, which is exactly
what they did with the commercial
building code here.
If we agreed with your argument that
rulemaking is core executive
power.
Talk a little bit about what the
impacts of that might be.
How broad is that?
How narrow is that?
Is that is that a big a big
change? I mean, obviously, our cases
have used to describe it as
executive power and
now more have described it that way.
But talk to me a little bit about
the impacts of that.
I'm just curious, what other areas
of law does it affect?
We can try to think about the doctrinal
consequences of a pronouncement
like that.
You've indicated maybe there'd be
less with the cameras in prison.
I'm not sure if there are not,
but I'm curious
how you see that.
Well, we actually think it could be
salutary in the sense that it would
incentivize the legislature
to, you know, pass laws
that maybe are clear about what it
intends to do.
And also.
During the rulemaking process, I
think it's going to encourage both
stakeholders who are interested in a
rule and the legislature itself
to communicate with the agency.
While it's making a rule right now,
nobody has an incentive to
communicate with agencies because
they can just wait until that last
week before the JCR vote
and talk to them.
So we think from a public policy
perspective, there's going to be a
lot of great ramifications
of this. I don't see legally
there being these ripple effects
that are problematic that are any
different than what this court
already decided in EVAs
one. And of course, as I said, we
concede that the Chapter 2227
procedures about how agencies
make rules are constitutional.
We're not challenging those.
Count Counsel, If you went the route
or this court went the route of
saying.
That it is
a core executive
power. How many cases would we have
to overrule?
Well, it gets a little bit into your
know, Dick General.
Your Honor.
We think doesn't.
Exist.
It's not three votes.
It's not.
Complicated.
And in terms of in terms of
direct holdings, we we continue to
think it's Martinez and those
derivative I'm calling it the
derivative paragraphs of SEIU.
But then I'll just give an example,
paragraphs 98 and 99
of SEIU, which was Justice Kelley's.
I see my red lights on.
May I finish?
I have some questions too, Chief.
That's okay.
Those weren't strictly necessary
to the court's holding on the
guidance document issue, but
Justice Kennedy talked at length
about his view of of
rule making at those two paragraphs.
So I'm not sure.
If you if you lean more
towards one of my colleagues over
at the very not at the
very end.
Let me point out, Justice Hagedorn
was the tall guy at the end
who might who might see
dicta differently than I do.
How many would we have to overrule.
Based on justice hagedorn's view of
dicta? I would stick with Martinez
plus those few paragraphs of SEIU.
I just want to bring you back to the
beginning of your argument when you
were trying really hard to lay out
your three arguments.
I just want to make sure we got
through all of them. I think we did.
I think what your your
arguments are
by camera is amend presentment.
Shared powers, core power.
And I think you did have a chance to
touch on all of those.
I did. And I just want to I just
want to mention quickly that part of
the core powers problem is not just
the executive branch, it's the
judiciary. And if the court looks
at the reasons the car can veto
a rule under two 2719
for.
They are all questions that courts
answer are not legislative
committees and other courts have
pointed out that separation
of powers problem as well.
And then I have one more detail
question your friends on the other
side. On page 40
of their first of their, I guess,
first and only brief,
they argue that the challenge
to the suspension of the conversion
therapy rule is moot
since that rule is now
in effect.
And I'm curious as to what your
responses to their mootness
argument.
So first of all, it's not moot at
all because under two 2720
62I am the
Jay car can re suspend that rule at
any moment it wishes.
And second, we think that the
importance of these issues would
meet the standard for the exceptions
to the mootness doctrine.
Counsel, I just wanted to
ask you to briefly address
sort of the reliance argument on
precedent.
The legislature makes a case,
and I think it's a compelling case
that maybe
what we have here is a
sort of gentlemen's agreement about
how we're going to operate with
government, right?
We go where, you know, we're going
to maybe it's not what
the contract says, but it's not what
the Constitution says.
But hey, that's how we've been
operating for a long time.
And the legislatures passed a lot of
laws accepting
the framework that's been given.
I mean, I think your
point and others have said this this
case is this case is is
consequential for the operation of
government is maybe I've seen
in my time on the court, admittedly
five years, but it's
consequential case for how
government operates.
So could you address that argument
along with, you know, they make
at least at least some pitch towards
a severability kind of argument.
Is there anything you'd like to
address just on on
that? It is there is a real issue
because we'd be we'd be overturning
a whole bunch that has relied upon
what this court said.
And even if you're right that that
was wrong, that is often a
consideration that courts might have
when we're thinking about how we
deal with these questions.
So they made the same argument in
year one, and this court didn't take
up and up on it and
for good reason.
The U.S. Supreme Court has given us
two really important rationales
why government reliance
isn't a valid factor on the starry
decisis question.
One which the court discussed in
Citizens United, is that
it prevents the court from saying
what the law actually is,
even if it requires the court to
overrule its own precedents.
And the other which the Court
discussed in Ramos and Gant,
is that the public's interest in
discontinuing illegal
laws and practices is
going to always outweigh the
governmental interest or enjoyment
in their persistence.
And I think this gentlemen's
agreement concept, I think that's a
really great framing of it.
But that kind of just shows how
pernicious it is that we're all
going to have this deal to to
violate the Constitution because it
suits the people in power.
And one of the things that the
Alaska Supreme Court said in a lie,
voluntary that I thought was really
helpful, was that what these
enactments do is say
an earlier point in time when the
legislature either has the override
power or a friendly governor, they
can say for the future, we're going
to make sure we never have to go
back to those people.
Right.
And so they can they can.
They can.
And I'll quote the court, They'll do
it better than me that the power
they possessed at one instant in
time for future periods when the
legislature might otherwise be
incapable of acting because the
executive veto.
But we know that one legislature
can't bind everybody for the future.
And that's kind of exactly what this
does. And just to hit on your
severability point, I'm
not aware of any Wisconsin court
that's looked at severability across
all the statutes.
What we do is we look at a
particular act and look
at those provisions and see whether
the legislature have created all
those together.
And I actually tried to find some
scholarly articles, and I can't find
courts that are conducting the kind
of analysis they they never made an
argument as kind of implied,
but wouldn't would take that kind
of tack with severability.
Counsel have questions for you on
a issue that was raised, I believe,
in an amicus brief about whether you
have standing, whether your clients
have standing to raise these
claims in the first instance because
you work for the attorney general.
And typically it's the attorney
general's job, as we have
recognized, to
defend the statutes
of Wisconsin, that this
court, going back to 1961,
said the general rule is that state
agencies and public officers
cannot question the
constitutionality of a statute
unless it is their official duty to
do so, or they will be personally
affected if they fail to do so
in the statute is held
invalid.
And the exceptions
that have been recognized by this
court don't apply.
So do you have standing to be here
making these claims?
So Your Honor actually has two
questions. The first question is why
is the attorney general here?
He is not a plaintiff.
He's representing
governmental entities,
but he has authority to be here,
which is a separate question under
chapter 165, because the
governor requested that he bring
this case.
Now, on the standing question, the
case law your Honor's referring to
are is the rule that
agencies can't challenge the
constitutionality of laws that they
enforce.
And instead what they can do is sort
of refuse to apply
those statutes and raise it as a
defense if the other side sues
them later.
This is a different matter.
This is in the separation of powers
cases, that agencies are directly
injured because it's their very own
power that's challenged.
And I'm not aware of any case where
courts have said that the executive
branch doesn't have standing to
bring a separation of powers
challenge about.
Harm to its own branches.
Powers of the executive
branch has challenged the standing
of the legislature in past cases
to do the same.
Well, I actually I actually
disagree with that.
I mean, if you look at Palm
in Palm, the legislature brought a
case where they said our
statutory right to review rules
isn't being abided by.
So we have standing there and we
didn't challenge their standing
because they actually did have skin
in the game there.
There were prior cases.
Counsel Since I've been on the
court.
Mark Klein I want to return
to that. Mark Klein One again,
shorthand
you're suggesting some
inconsistency,
which suggests to me that you
think. Mark Klein one answers a
question here.
Could you respond to that?
Because I don't see
any inconsistency in
the first principles that I was
laying out for you.
And their application between
this case and
the last case, which involves
completely different things,
right. We're we're dealing with
rulemaking here.
We didn't deal with that in the
first one. We were dealing with the
an appropriation that the
legislature made.
And then the executive
branch was trying to carry
out the law, as we said
in Mark Klein one.
So where's the inconsistency,
counsel?
So I don't think I use the word
inconsistency.
I think what I was trying to do was
draw an analogy between
the court's point at paragraph 17
and 18. And I think this comes up
in SEIU two, paragraph
62, where the court talked about
the attorney general's powers.
That just because the legislature
creates an agency doesn't mean
it can do whatever it wants to.
Once it's created those statutes
giving it that power.
And I was saying, I think that's
analogous. It I'm not arguing
that that there's that Mark
Klein one or others one already
decided the issue.
Attorney.
Go ahead.
Okay.
So you did.
I know just as an analyst Bradley
asked you lead with your right
and then lead with the left.
That's I got it.
And I didn't I don't know if I
heard. So I guess I'll ask it a
different way.
If you couldn't have more than one
of these, you've got three
choices of how we would if you were
writing this. I know.
I think I heard you say you would.
Your platinum would your platinum.
Right. I was going to ask about your
platinum button, but not without
combining theories, because
I think I think what I heard you say
is other courts have done both by
capitalism, imprisonment and court
power, and that might be your
platinum. Okay.
What's your gold?
Well, I mean, we're comfortable
with either I
partly we presented the core power
series because we do think that is
more correct, but we recognize
it requires more of a shift for
the court. And, you know, basically
we're inviting the court to take a
fresh look.
If that's not where the court's
at, that's fine.
But we would still ask for the court
to decide it on both by cameras in
and presentment and shared powers
grounds.
And we and we you know, we'd like to
cover the fact, the constitutional
principles as fully as we can.
So it's clear to the legislature
what they can and cannot do because
their enthusiasm for passing new
veto statutes may continue
beyond this. And I think it's
important for them to understand
what's possible.
And I think you.
Learned just fine.
I'm sorry. Go ahead.
Thank you. Let me follow up on that.
Former Chief Justice Surely
Abrahamsen would often
ask the question,
if you were going to write this, how
would you write this, which refines
the I don't mean that it needs
refining, but adds on
to the question the just
asked. If you were writing this,
how would you write it?
So if I personally were writing
it and it had the votes to do so, I
would decided on both
by cameral ism and presentment
and core powers grounds.
And I would also be sure to include
the intrusion in judicial power.
Okay. If you exercised a little
judicial restraint and
job and
didn't do the whole ball of wax,
how would you write it?
So again, I if
if I were a justice, I would be
interested in consensus and
getting as many people to sign on as
possible.
And so I would go with what I
suggested to Justice Dalot
by care, realism and presentment,
plus the shared powers analysis.
Okay.
My question is about
the facial challenge standard.
Your friend on the side cite SEIU
on page 21 of their brief,
and they say SEIU reaffirmed
this court's, quote, clear and long
standing, end of quote, facial
challenge standard that requires
the challenger to show that, quote,
all applications and of quote
of the challenge law are
unconstitutional.
And then they go through
painstakingly read each
subsection of the statute at issue
here, and they demonstrate
how it would be possible
for that rule to be
enacted. I just wanted to give you a
chance to respond to the
facial challenge standard that
they propose in their brief.
So their examples
are based on an erroneous assumption
of law, which is that if they
can find examples where the
executive branch is in is upset
or is happier, that means it's a
constitutional application.
But that's not the legal test.
And that's true even under the
shared powers analysis, Right?
In Johnny B, we didn't look
at whether there were situations
where the court would say, Actually,
I didn't want to appoint counsel in
this chip's case.
So thumbs up.
I like the statute.
Right or instinct left.
We didn't ask where courts in some
cases would say, I
agree. Prosecutor We shouldn't
give this person early release.
It's the power of the encroaching
branch that matters.
And so whether the I think in their
brief, they talk mostly about, you
know, sometimes it's a little
shorter and sometimes it's longer.
So that would change the,
you know, facial standard.
It doesn't the legislature always
has that power to veto and override
whenever they want to.
All right.
Thank you.
Obviously find a little
more lenient standard on time
limits today, but it's an
important case.
So I
think, Your Honor should set them
for the legislature.
Petitioners here bring a remarkable
five facial challenges
while asking this court to overrule
multiple unanimous precedents.
Justice Potter say, which I'm going
to answer your first question and
begin the argument which, with
respect my friend, did not answer.
Their strongest argument is
on the.
Permanent suspension of proposed
rules.
Almost all of their cases from
out of state deal with permanent
suspensions of a doctor or proposed
rules their weakest challenges.
And I think there once we dig
in, I hope the court will see that
insubstantial challenges are
to all of the temporary
things that either
the standing committees GCR
can do, which essentially just
serve as a grace
period, a waiting period
for the exercise of by Camilla.
Presentment.
I don't.
Where does the Constitution say
there's a grace period for the
exercise of by camels and then
presentment?
Well, no. So the way that those
provisions operate, Your Honor,
is they operate like I
don't think there will be any
dispute of constitutionality
if the statute was as follows.
After the agency promulgated
a proposed rule, there
is then a six month period
where that rule does not go into
effect and then the legislature
can vote.
Through by Campbell isn't
presentment to the governor to
repeal the rule?
I think there would be no argument
that that kind of statute
would be constitutional.
Well, right. Because the
legislatures.
Right.
That's the main finish. Your Honor's
Yeah, it's important.
So the
only difference in those three
provisions that I think are in
substantial their challenges
is that instead of sitting out the
six month period,
that will be unchangeable
for the legislature to decide
whether it wants to repeal the rule.
By both parties acting and sending
to the governor, it's an option.
The JCR can
trigger essentially that waiting
period because it because all it's
doing, all those provisions are
doing are in service
of the legislature, doing something
that I think my friends would agree
is no cultural problem, which is
ultimately voting in both branches
and saying to the governor the
decision of whether to stop the
rule.
But we see
air is not
the legislature.
It's ten people.
Right. The ten people deciding
to veto as opposed to
both parties, both branches of the
of the legislature from being
presented with
with exercising body cameras
on presentment.
So certainly on there, one challenge
that I think has some strength on
the permanent suspension, those ten
people are vetoing four for the
other challenge.
It's not ten people, though.
I think that I think that's really
what's the fewest number.
And I'm not sure from the briefing
actually if it's 3 or 4,
is it 3 or 4?
I don't know. But it is less because
so.
It's less so it's about 3% of the
elected representatives in the
state.
But those the
action of those in those
legislatures are taking for the
temporary provisions are not a
legislative veto at all.
And again, those provisions
are not a legislative veto at
all. All they are doing is
creating a grace period,
no different from a six month grace
period where the legislature, the
full legislature, can vote
whether to.
That is just not right.
It is just not right.
The point that you are missing is if
the whole legislature votes on it,
it bicameral ism, it has to go to
the assembly, it has to go to the
Senate, and then it has to go
to the governor who can veto it.
That doesn't happen here.
It's 3 or 4 people and
that dead stop.
There's no other branch there.
There's no governor.
There's no veto.
That's it. It's 3 or 4 people.
It's that argument.
Come on.
You're right. It just doesn't make
any.
Sense what you're saying.
Absolutely wrong, Your Honor.
What happens?
We'll see. We'll see about that.
I know you're obviously.
Not correct if the legislature
does not adopt that bill
blocking the rules and the governor
signs it or the governor's
veto, it was overruled.
The rule goes into effect.
Those three putting aside
the permanent suspension
provision, which I agree their
argument is stronger for the others.
If Campbell isn't presentment,
do not lead to the repeal of
the rule.
The rule goes into effect
just like one of the rules here
goes into effect.
So it functions exactly
as a practical matter, like a
grace period.
Three months.
Six months. Counsel.
Counsel, let me ask you this.
Let me ask you this in a more, I
guess, broad fashion.
I'm assuming that you read the
amicus briefs in this matter.
Yes.
The legal scholars.
Really assert that the power
of Jack Ra, however
it's pronounced, I call it J.A.
like Joker.
They say that it's really.
A national outlier.
The power over the executive
branch's rule making that
Wisconsin's a national outlier.
What do you respond to that?
I mean, I think that the reason the
legal scholars are getting that is
they're leveraging.
The one example that I can see
that is is stronger for them.
And they're using the existence of
that one example, which I grant
the permanent suspension usually
is done through in other states,
is done through joint votes of both
branches, both houses of legislature
without the governor.
That that is an unusual
provision.
The with the the other
provisions here, the other four and
especially the three temporary ones,
they have almost nothing to say
about those.
I think for those they say this
between 8 and 14 states
do something like that.
I mean, obviously, each state has
structured a little bit a little bit
differently. But and I think
of the cases they cite, the
only one I believe maybe there's one
other the only one that actually
struck down a temporary 1
or 1 of two was Missouri, where
the Constitution specifically
empowers
agency rulemaking in the text of the
Constitution.
So almost all of their cases and
almost all the examples that the
scholars are using are on that on
that fifth category, the
permanent suspension where justice
crops, you're exactly correct there
for for the permanent.
So you're calling Can I just I
just want to make sure you and I are
using the same words.
Okay. I think in the briefing that.
Two 2719
five DRM.
Yes. Is that indefinite objection?
Yes. Okay. Hold on.
Just hold on in two 2720
62I am is
the multiple suspension.
But the phrase you're using
here today is an indefinite or
a permanent suspension.
And I'm not I'm not
sure which one you're talking about.
Yeah. So I'm talking about when I'm
talking about I'm talking about the
demand, the indefinite and
permanent. I think it's the same.
Objection. Yes.
Not the suspension.
Right. Right. So so for that dam
one, that's their strongest
argument. That's the one that the
legal scholars analysis almost
entirely deals with.
Counsel, I want to take a step back,
and
it seems to me that cases like this
present us with an interesting sort
of fork in the road, as
I maybe mentioned to your opposing
counsel,
the Current. Arrangement in the way
government operates is a kind of a
gentlemen's agreement.
I have not heard any argument from
you
that if there is,
I'm happy to hear it.
But that if you look at the original
public meaning of the Wisconsin
Constitution, that the kind of
blending and melding of powers that
currently is in place
would be consistent with our
constitutional structure.
And so it feels to me like
the argument we have is do we go
back to the original
public meaning of the Constitution
and its structure,
or do we say we've kind
of blasted for pragmatic or
other grounds and
just try to do some intermediate
line trying? The argument you've
made to us is,
listen, this has been blessed by
this court.
You know, 33 years ago,
Let's you know, we
need to not just disrupt government
now. I don't see you making an
argument outside of that.
That goes to the core of our
constitutional structure.
And I want to give you an opportunity
to do that and give us maybe your
insight and how we're supposed to
approach approach these things.
Yeah. So I think that
if Your Honor's were to go down
to the original public meaning of
the Constitution,
the administrative states got to go.
I mean, that's the fundamental
problem.
The the early cases that
that Your Honor pointed to
in your POM dissent,
you know, those were about
agencies having
the authority to do things with the
internal organization of government
and this notion that administrative
agencies can create
law. And let's be realistic.
No law that has so far
water under the bridge.
And I'm not standing here.
Your Honor's saying that this court
should throw out the entire
administrative state.
That is a lot of under under the
bridge. But I think it is quite
unfair then to the legislature
to say, well, where's your original
public? Meaning, Well, this whole
edifice is built
upon the notion that we are allowing
the delegation of legislative
power to executive
agencies.
Once we're allowing that no, judge
Justice Bradley doesn't doesn't like
that. And if you're you know, if
Your Honor had.
It's not about not liking a counsel.
It's about following what the
Constitution says and making
sure that the people are governed by
the people they chose to govern
them. And when we see when the
legislature cedes its power
to unelected bureaucrats in an
administrative agency apparatus
under penalty of law, they have to
follow those rules and regulations
to call that water under the bridge
or the dam.
Is I mean, this is I mean, this was
kind of a famous dispute between
Justice Thomas and Justice Scalia
back in the day, where Justice
Thomas, his position was, you
know, let the government forward as
and we're going to enforce the Constitution
whole hog. And Justice Scalia said,
you know, I'm not going to bring
down the whole government.
I think he called himself a faint
hearted originalist, you know,
And so that's you know, there's two
ways to approach criticism that way.
But just to follow.
Up on that, then, I mean, you know,
what's the principal basis for
making a decision that it just
feels like then we're just
trying to figure out
the separation of powers.
It's not about the balance of
powers.
It's not about whether there's good
checks or the legislature has the
right input or not.
It's about whether the whether
each branch stays in their lane.
And so that this that's how I
conceive of it.
And so now I think the Constitution
does.
And if so, I don't know what a
principle basis is to do line
drawing other than go
to the structure of the
Constitution.
If it's just
I mean, what's a temporary
pause? Not a big deal,
maybe permanence too much.
I mean, I don't know how to I don't
know how to even handle that.
If there's no text to
work with or structure that I'm
pointing to.
If Your Honor, assumes the
the administrative state rulemaking
is permissible, just grant
me that. Obviously, one assumes
that's not permissible. Then you've
got a lot of got a lot bigger
problems, but one assumes
that's permissible.
Then it must be so that
the legislature could pass the
following law before an agency
adopts any law that
any before agency adopts any any
regulation.
We have a six month grace period
where the legislature can choose
through by cumbersome presentment
to overrule that
rule. So that that I think
is uncontroversial.
Legislature could do that.
Can't the legislature do that
anyway?
They can always pass a law by
by cameras on presentment after an
agency passes a rule.
Yes, of course. Your examples,
correct?
No, no. But my example builds in
something further quite important to
those three categories of of
their facial challenges that I think
are quite weak.
The law that I'm hypothesizing is
not only would legislature pass a
law, but the law with a prior
law would say that no, no
rule that an agency promulgates.
Can take.
Up to six.
Months.
Takes effect for six months.
Sure. And so what?
When we're talking about the
separation of powers, I would
respectfully submit that the regimes
that are embedded in those three
up temporary provisions here
are significantly better from the
point of view of separation of
powers, because let's say the rule
has no problems.
Let's say the rule is a really
good rule that complies with the
statutes, complies with
everything that anyone would want.
Well, maybe there's not a good
reason for it to be paused for six
months. So rather than putting the
legislature to this choice to
have this bright line,
six month thing.
I see nothing in the Constitution
that says that we couldn't have an
intermediate situation where
an agency can
essentially trigger or not trigger
that a
committee can essentially a.
Committee or a committee.
So you see nothing in the
Constitution where 3%
of the body of governing
elected that the people have chosen,
where 3% gets to make that choice.
Don't you don't see the difference
between that and what you first said
to us? What you first said to us is
a law.
It went through by cameras of
imprisonment. And yes, the
legislature has great power here.
They can tell they can destroy
an agency.
They can make an agency wait six
months in order to effectuate
a rule so that they can meet and
they can discuss it, of course.
But that is the point.
The point is they are acting as
the body that was elected.
What this is, 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.
And so it's absolutely
distinct whether it's good or bad
or whether we like it better or not,
should not be what matters.
It's the Constitution.
The legislature, when it rulemaking
is being done, is giving away
its power to
advantage.
You can't sure.
Is giving away its power
to the executive
agencies.
So what that if an
x a law a
law that says that in
giving away that power to you,
we we are interposing
one of our committees.
There is nothing offensive in the
separation of powers on that.
If one assumes, contrary to Justice
Bradley's views, that the giving
away of the legislative power to
some extent is permissible now.
But just so that
I can most of them present.
And I really wanted to you know,
when we were when I
was before you in Marc line one or
it was one where I say you
pushed me really hard to
give me to give me to give you
an intermediate principle so
there wouldn't be this all or
nothing here and more.
Glenn I was disappointed in myself
and in and afterwards I couldn't
think of a limiting principle here,
a limiting principle that would not
require overruling unanimous
cases.
The prior justices of this court
have ruled on unanimous cases that
multiple justice of this court,
including, you know, just justice
I'll just crossed you have ruled on
is readily apparent, which
is a permanent
or indefinite objection
that's out these temporary
ones just like martinis.
That's fine.
This time we bring to you
just briefly a middle ground
consistent with everything this
court has ever said
and and consistent
with keeping them keep
in the belts and consistent with
separation of powers.
Counsel, do you see a principled
basis for the distinction that
Justice Stallard is drawing
between the Legislature's sub
delegation of its powers to
an unelected administrative
state and its sub delegation
of its powers to a committee of
the legislature that is actually
comprised of legislators
who were elected.
Yeah, I mean, of course there is no
difference there, and I have not
heard one from.
Your argument depend on this non
delegation theory that's never been
adopted.
But we're still arguing about.
So take away non delegation theory.
They have the right to give the
power. Once they give the power.
So if you take that out, does that
take away your argument?
If they can give it to
if they can give that power
to administrative agencies, they can
give a a sliver
of that sort of power to GCR.
Let me just push back if I can, or
at least test at least this question
of whether
any kind of rule making is
automatically a delegation of
legislative power.
Sometimes we we think about these
things broadly, you know, like
declaring that Clean Air Act says
keep the air clean, you know, and
then you have all these policy
choices that are made, as I
understand, sort of the thought
process behind the idea that there's
a bunch of policy choices that are
being made their way that looks
a little bit more like the kind of
thing the legislature supposed to be
doing, obviously. Right.
But a lot of administrative
rules that
most of them, I think are much are
based upon much more specific
statutes, you know, tax
product X,
and so that the executive
branch ordinarily would then just
figure out what constitutes
X and tax it.
And then if the legislature says,
but you need to pass rulemaking and
tell us how you're going to define
what fits into that category.
I'm not I'm just I'm not sure
analytically why that necessarily
falls into
kind of delegated legislative
power. I mean, it's not the case to
me. I don't that
that every policy decision is left
for the legislature. Lawmaking is
given to the legislature, but the
executive branch has to
use its judgment and and
to some extent, policy in
interpreting and applying laws that
have been passed all the time.
Yeah. I mean, look, my point of view
is that when the
a body legislature
or agency is making rules of
conduct prospectively that govern
human beings, actions,
businesses, freedoms,
that is that is legislative
power.
Let me just push that then.
So if you say you need to tax toy
moneys. Okay.
I don't know. I thought toy moneys,
but I thought of toy box toy
bunnies. I don't know.
I Electronic toy bunny.
You're not going to live like that.
I sure thought about this ahead of
time, but that's okay.
I have no idea.
Well, my God.
But suppose you want
to tax toy bunnies, All right?
And and so you you have a
you have a law that says you need to
tax that.
I mean, ordinarily speaking, then
the executive branch just is
going to do that and is going to
fulfill and execute that law and tax
toy bunnies at the appropriate rate.
But let's say the legislature says
but but we need to now come
up with a rules structure
about what fits into the category
of toy bunnies or not.
Why? It seems like your argument is
if there's a rule structure, it
becomes delegated legislative power.
But if there's not a rule structure,
it's totally fine.
I'm saying that's my argument is
literally every case this court has
ever decided, the only cases that
my friends can cite and that were
cited in your dissent and Palm
involve agency decisions
that impact just the internal
organization of government as to say
who is in what civil service
classification or who can appoint
whom and things of that sort.
So certainly that's everything this
court has ever said.
If Your Honor thinks that there is
some line between,
you know, where it gets a little
blurry.
No, not minimum.
It's a it's a mixed power.
And in in those circumstances that
are core executive power, I mean,
there's no case in Wisconsin's
history that even arguably suggests
that. So I think it's
you know, I'm with Justice Rebecca
Bradley on that. I think it's is
legislative power.
But I think the only other possible
choice is a mixed power
and executive power
writ large.
Certainly not in legislative power
because because
y can you expand on that?
Because you're making decisions
that govern the prospective conduct
of individuals for their businesses,
their lives. That's why.
But but when a, when a law has been
passed and it's already
the law and you're
just executing the law,
why wouldn't that why
does that necessarily it's not it's
not lawmaking.
Right. In the constitution says
legislature gets to gets to
pass laws.
That's how it determines what the
law is.
But, you know, the agencies are, in
fact, lawmaking.
I mean, this court I mean, this
court's statement in
1928, in the Whitman
case, it was praised as just being
candid.
But like, let's take the toy body
example.
If the if the if the agency
if the statute says
choose which kind
of products are going to be taxed.
That is a policy choice
that that in the court
to the at the founding is
expected to be made by legislature.
Given the complexities of modern
government or you know you can have
you can subscribe for nefarious
motives to it.
The legislature has decided it
cannot practically
make all those choices.
Well, that will.
That gets to the that gets to maybe
the cousin of of of
this that that Justice Bradley was
talking about.
So please tax you know
products that will raise a tax
dollars might be a non delegation
problem in that you don't have
a sufficiently specific law
that actually makes those policy
choices.
I think you know earlier cases
handled it that way.
And then you have this movement that
says, all right, fine, we're going
to let you pass these laws that
don't have real discernible content,
and then we're going to allow a
bunch of policy choices to be made.
But again, a lot of our a lot
administrative rules are not based
on generic, undecipherable
statutes. They're based on very
specific statutes.
I mean, the problem with this I
mean, this is what's so frustrating
about arguing this case and hearing
the questions about regional public
meaning. So is, yes,
if you enforce the non
delegation doctrine the
correct way, as the founders,
you know, back in the 19th century
would have envisioned it, all those
choices would not be
open to agencies.
But we are here in the real world
where these provisions that the five
facial challenges we're facing here
are going to operate in the main
on the kinds of things that I think
the implication your question, our
violation, the non delegation
doctrine. So in that world,
we can't say, well,
if the executive branch was properly
limited to the things that it
actually is not, then you know,
you know how many angels will dance
on the head of a pin like we are
in the world where these contested
provisions, these five provisions
are in fact governing
what under these republic, meaning
is legislative lawmaking, in this
court's words.
And so in that circumstance, you've
got to just apply that doctrine
fairly.
Mr. Salem, I've heard you say
a couple of times
today that
I just want to make sure I
understand you've talked about
the infinite I'm calling it the
indefinite objection.
I think you're calling it a
permanent objection
suspension. I think he's calling it
a permanent objection.
I think we're talking about to.
Indefinite objection, I think is.
Yeah. Okay. Indefinite objection.
Yeah. I mean, I'm not trying to
parse words. I really I'm trying to
to I'm not trying to mess you up.
I'm trying to make sure you and I
are on the same page.
Because what I want to ask you
and then I have a real life example
I want to get to.
Are you are you conceding?
No. On that we vision.
Well, we said in our papers
is our position was that would
be constitutional
to the extent that
a because that provision allows
the introduction of a bill
thereafter.
And if that bill thereafter
succeeds, the the
the rule goes back and goes
back into effect.
So what we said in our papers, in
this case in the right there were
chosen carefully that since this is
a facial challenge and we can
hypothesize a circumstance
where it would in fact be
constitutional, that is, the facial
challenge would fail.
However, under Martinez,
I do not have an argument in order
presenting one that under Martinez,
when you have no end point
where by camera presentment must
be exercised, then
those provisions can survive.
Martinez And this is what I mean,
you know, just broadly about
presenting, taking very,
very to heart the statements
that were set said at oral
argument and Markel about giving
this court some middle ground
so that we're not in this all or
nothing world so that, you know, we
don't have you know, one of their
two examples here involve indefinite
suspension. So if Your Honor goes on
that they would win that aspect.
You know, it's a rarely used
provision, but we don't throw
everything out. We don't have this
thing where I mean, if
you think about it, the statute
the Martinez upheld actually
seems to in a very intelligent
manner.
And all these temporary provisions,
the three of them in intelligent
manner, to address the criticisms
that were voiced against
actual legislative vetoes.
Is this said and the questions
that you that I believe you asked me
at the more flawed arguments like
what are the standards here?
One, does it ever end?
Well, These statutes provide
specific grounds
standards and then it says it has
an end. And that end point is
by cannibalism.
Presentment.
Right. I understand that.
I mean, here's here's
I understand what your argument is,
but I think in that
I think if you look at a real life
example, you start to see
I think your argument falls apart.
And I and we can use we can use
toy electric bunnies.
But I see.
There are electric.
Tronic.
I don't I don't I'm sorry
I thought that's it's hard.
She's adding to the parser.
All right
I want to turn to a you know a
way more serious situation,
which is the conversion therapy
rule. Okay.
And so we have an amicus
brief from the National Association
of Social Workers, and they
talk about
conversion therapy, if you can even
call it therapy.
I mean, they referred to it as
torture on page 14
of their brief.
And I think with good reason,
because according to these experts,
the goal of the therapy is to cause
a patient identifying
as lesbian, gay, bisexual,
transgender or gender
nonconforming LGBT,
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. And then they go through and
they they give us some examples
of what conversion therapy is,
say, both historically and today.
It is it's enforcing rigid gender
roles through talk therapy.
It's repeating homophobic
or transphobic slurs.
It's isolation from friends
in family.
It's it's corrective rape.
I didn't I was a sexual assault
prosecutor for decades.
I had to look up what corrective
rape was.
And
it is
it was it
is rape perpetuated by a straight
man against lesbians in
order to correct or to cure
their homosexuality.
It is basically a punishment for
being gay and violating
traditional gender presentation.
It included or has included
exorcism
and aversion therapies such
as using electrical shock devices
or nausea inducing medication
to induce a negative response
to stimuli associated with being
lesbian gay.
Bisexual or transgender.
I can't believe some of the words I
just had to say in this room.
This is beyond
horrific.
In February of 2020,
the marriage and family therapy,
professional counseling and social
Work Examining Board
proposed a rule to stop
these therapies
from excuse me, to stop therapists
from torturing their clients.
They defined.
This is unethical conduct.
Employing or promoting any
intervention or method with the
purpose of attempting to change
a person's sexual orientation
or gender or identity.
Right.
That that was a rule that they
passed in 2020,
between 2020, in
April of 2024.
There were several pauses
in and one of them was the was
the the suspension under
2D1 was the promulgation
pause under five C,
But the sum total of
that is that
the the rule was shelved
for for several, several months.
So under your interpretation of the
statutes, less
than a handful of unchecked
legislators can check
a rule like this for an eternity.
Four people can
shove 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.
So, Your Honor, I'm going to answer
that question as a matter of
substance. And then as a matter of
of the the constitutional
theories that will be asked here,
certainly
in order to decide whether the
kind of structure here is
constitutional, you know, and
if one wants to take into account
the impact on real people,
Your Honor could, of course, imagine
the exact opposite situation, which
is that the rule proposed
by the agency may be in an
administration of your honor know
that that was different,
would in fact mandate
those horrible things,
some horrible thing, whether it's
that or something else, and then
whether the rule of law would be
different if the JCR
veto provisions were stopping the
things that are bad.
My point is that my point is that
you are basically
saying that
it is okay for 3
or 4 members
of the legislature
to put on hold
something to put on hold a
rule that literally is saving
people's lives.
What so and that and that.
And I'm not talking about
the indefinite suspension
here. I mean, this between
this the rule was it was
it was shelved for months between
February 2020 and June
2020 because of the promulgation
clause. It was shelved six months
between June 2020 and January
21st because of a JCR
objection.
In between January 21st and
March 20th, 22 four
month pause because of proposed
bills that failed
it. Then it took nine wants to take
effect. It was in effect for only
six weeks before there was a
15 month suspension under two
D.
And so my point is
that you're just saying it's
okay, you know, except for the
indefinite suspension, everything
else should be okay.
And I'm saying, no, no, there
are like real
lives that are at risk
here. And we we can't you know, just
as Dana said, when do we pause
someone's constitutional rights?
When do we just say, now we're just
going to it's okay.
Three months is okay. Six months is
okay, 15 months is okay.
This is hurting people.
Well, look, in terms
of whether it's hurting what's
hurting people or not, this these
provisions can obviously be used
for good or ill, depending
on what one's policy purposes
or any particular law.
But what I would say is what you
just described with a concern about
stacking these various provisions
is exactly the difference between
facial and as applied challenges,
what this court held in SEIU
unanimously, and I believe your
Honor joined that, joined
that opinion.
Your Honor, wasn't.
Here yet, you know, just as other as
other. And while we're actually
doing that and I apologize, I
was that you know,
if one three
month
pause is fine so six
months seems fine, but we're not
going to foreclose as applied
challenges.
So that's what I would take from
that. That's a group between a
facial and as a charge.
Certainly these
provisions do
not have to operate that way.
Ah It was
happenstance that the rule
was issued when it was in the
legislative calendar, so that the 30
day provision, which is what is
actually in the text, couldn't
operate because the legislature was
in regular session.
So if your Honor's are concerned
about the aspects of the
of these provisions or one of the
provisions that could lead to delays
of many months or years,
certainly Your Honor's can.
And I think SEIU did leave open
the possibility of as applied
challenges. But the problem is that
using, you know, and obviously they
cleverly identified, you know,
two very attractive examples
for themselves to bring this case.
One was the was an indefinite
objection at all.
I wouldn't I'm I'm going to you
want to use another term than
than attractive.
I mean this is horrific.
The the other was
a circumstance where the
happenstance of when the calendar
occurred where when the rule was
issued and the fact that additional
the multiple of these provisions
were used led to a longer delay.
It is not the
way you do facial challenges.
To take the example that is
the easiest for them.
The way that you do it is take the
example that's the easiest for the
statute, which is it's proposed
in 30 days and then the legislature
acts right away.
Is that unconstitutional?
And I think it is clearly that is
not unconstitutional.
If the legislature could and
I think there's common ground could
pass a statute that says every
single proposed rule, including
this one, would be delayed
for six months, then certainly
a provision that says that you're
going to get a 30 day delay based
on what your are said for
the legislature. R to exercise its
constitutional authority.
Undisputed here to do
by capitalism and presentment.
That is clearly constitutional.
In my respectful submission.
Obviously a different analysis
would apply for the for the
indefinite.
What is left of the rule of law
if this Court makes its decisions
based 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.
I mean, it's deeply problematic
that the the the
one could easily imagine
a proposed rule that
would offend the justices of this
court just as much as this
as this veto offends
offend some justice.
But if that happened, the
legislature can meet any
time and overrule
and exercise, bike human resentment
and get rid of the agency rule.
Now I'm talking about what happens
when this court makes decisions
not based on the law, but on our
policy preferences.
The legislature then doesn't get to
come in or we have a constitutional
crisis and say, No, court, you're
wrong.
Because what happens in the next
case? So that the rule is that and
you know, something that the
court doesn't like.
And so then the martinez's
on. Overruled.
I'll make it clear, I don't care
what the rule is.
The Constitution is the
Constitution.
If it gets violated for one second
or two months or three months
or six months, it's a violation.
I want to go back to
your I had asked
you a question and you gave me an
answer. And I process that answer.
And I want to just be clear
what you were saying to me.
I asked you if you assume non
delegation is not it's
not a thing so that the
legislature can delegate rulemaking
authority to the executive
branch agency rulemaking authority.
So you need to take that as a
presumption.
Forget Martinez.
You said that the legislature
can avoid its constitutional
obligation by giving the power
to g c r, that they can
just if they can delegate it to the
executive, they can delegated to
g c r.
What you're forgetting, I think, is
that they it is the legislature
that is bound by by cameral isn't
presentment not we're not talking
about the executive.
How does a legislature get to
delegate its power to
a few people under the Constitution,
which requires by cameral ism and
presentment.
And under the regime
that Martinez upheld unanimous.
Way?
Martinez under the statute
that I'm not allowed to mention
Martinez upheld unanimously
the the by the presentment.
The presentment absolutely happens
and in a facial challenge we must
assume that it happens in 30
days.
Okay. But in 30 days is not what
this where does it say in the
Constitution that it happens in 30
days?
Where does it what does it say that.
By cannibalism so
we can look at this to the
constitutional text, then what the
what the Constitution actually
says about by became wisdom
and presentment is that
section. So Section four,
Article four, Section 17 says no
law shall be enacted except
by bill.
The JCR.
Your action here
is not a law.
So Section four, Article
four 7 to 17 does not apply.
Then Article five, Section ten
says Every bill shall
be passed by the pass by law
shall be presented to the governor,
which is your air.
It is not a bill.
So the entire by cannibalism
and presentment objection to this is
a misnomer.
Okay, So you're making the
assumption that by stopping a rule
such as conversion therapy,
that that is not changing the law.
It was just the proposed rule.
That's true. It's a proposed rule.
No law has been changed,
just like the legislature could say
that that rule
will not take effect for six months
until we have a chance to do a
vote through both
houses of the governor to get rid of
it. So legislature can say,
if a committee says
that that that this
is objectionable, we're going to in
30 days, we're going to have a bill
that does the exact same thing.
There is no change in the law at
all. The conversion therapy
proposed rule was not the law.
It was not it was just a proposed
rule at that point and
in its proposed
nature, ended up being extended
by bite by a procedure
that was adopted in law as
part of the legislature's
deal, said, If we're going to give
you agency
this legislative power, then
these are the these are the
conditions on which you get
it. And if you don't want to make
the rules or make the rules.
You're back to non delegation, I
think. But. So you also don't like
cheddar. I assume you don't like
the definition of what a law is
under cheddar.
Yeah. I mean, the attorney
general's now proposed that this
court adopt charter in
three different cases in Martinez
unanimous rejected and
SEIU in
that provision unanimously rejected
including in a decision that Your
honor joined in March
Klein As just as Justice
Scalia put it up, they wrote the
charter, the charter bus.
And then while they won the case,
they got no, no, no
citations positively to charter
there, as far as I can see.
So they've now tried twice for three
times, maybe four times the charm.
Certainly, as I expressed at the
oral argument and mark line one
thing, Charter was wrongly decided.
I think the dissent by Justice White
was the correct approach.
This court has taken neither Justice
White's nor
nor the majority's approach and
charter.
This court has
unanimously done Martinez
unanimously, including it in
decision. I'm sorry, I know you
discuss it in joint, but this is
Dallas and this is Bradley did join
in SEIU.
And so that's what I'm asking this
court to stick to, to keep its word
to the legislature, because as
Justice Hagedorn said, we've been
making laws for a long time in
reliance on this
of this court's unanimous decision
in Martinez.
It is quite remarkable
to tell us that all of the
delegations of our power
that we have given to
the the executive agencies in
reliance on Martinez Hey, guess
what? Never mind.
Used to give away that power, but
now you don't have the check on
that power.
That was be quite a bait
and switch on the legislature from
with respect this court unanimously
told us this was.
All right.
Mr. Salem, I want to ask
you one question about the standard
of review, because I'm not
sure I agree with your brief.
On page 33 of your brief, you
say that this court adhered
to the beyond a reasonable doubt
standard.
And Mark, line one, and
I do not believe that's
the case. The the majority opinion
written by Justice
Rebecca Bradley on page eight
of Mark Klein said in making a
facial challenge, petitioners
face a tall task.
Then there was a cite to SEIU,
and then she wrote, The challenging
part must show that the statute
cannot be enforced under any
circumstances.
A search the the
main body of the majority opinion
and beyond a reasonable doubt
doesn't come up at all.
It does come up and justice and
Walsh Bradley's concurrence
in paragraph 42.
She writes I emphasize
that are beyond a reasonable doubt
excuse me, I emphasize that are
beyond a reasonable doubt.
Standard of review retains vitality.
But as presented in the argument
before us, I conclude the beyond
a reasonable doubt standard
is a poor fit in the separation of
powers context.
Abandoning the standard and the
context of separation of powers
evens the playing field between the
branches while leaving the standard
of review for other types of
constitutional challenges intact.
So. So I don't believe
that. I'm sure any one
of my colleagues disagree,
and it's unfair.
I see Justice. Rebecca, I don't know
if you're looking at my outline, but
it's paragraph eight.
I don't know.
I don't I don't think that's right.
I don't think what you wrote is
right as far as that.
This Court. Court adhering to that
standard.
And I.
I mean, I will say, I noticed
that point in the reply brief.
You know, certainly in other cases,
including recent cases, the court
has applied that I agree with the
reply brief that that
what they're actually.
We're not asking to overturn that
aspect of Martinez
and ACLU. They were asking to
overturn the aspect
that of Martinez,
SEIU, Gabler All
those cases that say that for
a facial challenge, you have to have
every single application.
So I take the point in the reply
brief and. Conceded here.
Okay, please.
No, I just I just wanted to
That was it.
You just mentioned overruling cases.
I asked your opposing counsel
if we would go a
route of separation
of powers, what cases
would have to be overruled.
And she gave me.
A couple like two,
maybe three.
You mentioned Whitman before.
Whitman was a 1928 case
that really established
not only for Wisconsin but for
the nation.
As the first step in defining
the role of regulatory agencies
and rulemaking.
The law was written by
Rosen, very good friend of mine
in spirit.
He's older than I am in 1920.
And.
So I give you.
And he said in that case that
it's a legislative power, this rule.
Yes, absolutely, Your Honor.
So what so what
cases would we have to overrule
if we divined
that this is a core
executive power.
You'd have to overrule
Whitman.
Schmidt.
Unanimous decision in
Martinez.
The unanimous aspect of SEIU.
That's just the rule, you know?
I mean, I found their brief
quite jarring. You know, obviously,
as was explored last time
at the mark on one argument, just
with the specifics, I believe
certainly we have I have asked.
Represent various class to overrule
cases from time to time.
Always take it really seriously.
Always walk through all the factors,
the casual nature with which
they're briefing in this case.
Asked to overrule case after case,
there was one time when they were
asked to overrule that in a
footnote, like a one
sentence footnote.
It really isn't.
You know, my.
Shift from.
That wasn't a bad idea.
We ended up doing that about six
months later.
So that was an Allen Johnson
to overrule Chevron.
Footnote eight We did that about
six months later.
To a vigorous, separate writing.
So I mean, it's certainly not out my
understanding of this of this
court's approach to starry
decisis and certainly not
my my understanding of Your Honor's
approach in particular to
star decisis.
You know, I mean, I hope this is not
my last time arguing before you,
Your Honor, but it may be.
And. You know, I've always
thought that I'm going to get your
vote in an important case
where it established us, but I can't
imagine a better situation
than this one where I've got
unanimous precedent after unanimous
precedent in my direction.
They have no Wisconsin precedents in
their direction.
Further, I took your your
entreaties. So Marshall, I'm very
seriously gave your Honor's
a middle ground position you know
essentially said that one
of the statutes, the challenge here
is very difficult to defend.
You know, it was maybe our last
time together. I would think so.
But he's pulling out all
news out of where we
come right down the road, where I
could say, though, I got to bring
out a dozen Rosen rallies vote.
And so I just want to quickly.
You're not going to have a hand on.
That one that.
You've offered what
you say is a middle ground.
In some ways, I think your
main argument is what?
I've offered a middle ground.
Yes. Well, what I think you've
you you are suggesting to us from
a legal basis is
to basically affirm Martinez
and in which
you would say
and you know, you think about,
you know, when you sit on this side
of the bench, think about how to
write an opinion. Right.
And so I think what you're asking
us to say is
something like,
you know, the administrative state
is what it is, the balance is what
it is.
Martinez strikes a sensible balance
between the branches.
Maybe we need to
maybe we need to draw a few clear
lines here and there.
But but it's a sensible balance.
What how would you describe
the legal basis, the principled
basis for the middle ground that
you're offering? For us.
What I was the way that I would
write the opinion to answer question
is Martinez
is the law of the land.
It was decided I would apply
the Johnson control factors
to Martinez and I would say
Martinez provides the governing law.
Then, once Martinez provides the
governing law, it is very clear
that four out
of these five easily survive under
Martinez. That's the way I would do
it. I don't think that, especially
in this original action posture, is
necessary for this court to spell
out the details of
of various other principles
of of separation of powers
to deal with the non delegation
doctrine a full some way I would
say. Martinez
unanimous long you
know several decades ago
lots of reliance not
not on sound and principle etc.
etc.
plus the Johnson control factors.
Once that part of the opinion is
written that Martinez is the law of
the land, which is
and then then then
the analysis is easy with
respect. And I certainly understand
that some for some justice
on this court might not love
Martinez, but start to say this is
no good.
What it only applies to cases that
that we fully agree with that is
hard. It's hard to come up with the
example for a more compelling
situation to apply starry decisis
to a case that maybe you don't fully
agree with that a unanimous decision
in the separation of Congress
context when there's been massive
reliance by a co-equal branch of
government.
Thank your Honor's.
Thank you. Thank you.
Rebuttal.
Okay. Glad to get through.
I want to start with bicameral isn't
presentment.
The premise of Mr. Allen's argument
today is that the Constitution
offers a grace period.
But as you indicated in his response
to Justice Gallant, there
is no such grace period in the
Constitution.
And that's quite euphemistic, to
say the least. We know that the
periods of time during which the law
sits amended with no
action beyond the decisions
of just a few legislature
legislators is a very long
time, typically until the end of the
legislative session for each
veto. And as we know, they
can stack.
Counsel electronically through just
the Constitution.
There's also nothing in the
Constitution that permits the
legislature to sub delegate its
powers to the executive branch or
to a legislative committee.
So when we're talking about the
Constitution, you can't
have it both ways.
Let's deal with the case we have
here, Your Honor.
That's my case delegation
case and we'll defend it.
I'm excited.
But it's not before you today.
But let me get back to the lack of
doctrinal basis for the concession
the legislature makes.
I've only a few minutes here, and I
understand.
And we've given a lot of leeway
beyond the red light.
But this is the Constitution
is not something you can invoke
and then just abandon it when it
doesn't suit your argument.
So if you're going to make an
argument based on what is
in the text of the Constitution,
you can't have it both ways.
Either we are going to apply
the words of the Constitution, say
if it isn't in there, then you
can't do it, but then it's not
in there for your branch either.
I fundamentally disagree that that's
how courts decide cases.
We look at the constitutional
provision that's in front of us in
this case, which is we're talking
about bicameral wisdom and
presentment. We're not dealing with
non delegation right now.
I mean, this I talk about we're
happy to talk about it, but
bicameral isn't presentment.
The text does not support the
doctrinal distinction they're trying
to make. In fact, all they're trying
to do is say, well, the hardest case
for us, the case we clearly lose on
is the two 2719 five
deem that's not a doctrinal just
difference. That's just conceding on
his and his weak point.
He also says, well, isn't this
better from a public policy
perspective than having a statute
that would make everybody wait for
six months?
That's irrelevant.
The question is whether each
statutory provision is and is
constitutional or not.
And the five statutes here
are not.
At the end of his argument, he,
for the first time raised the idea
that pre promulgation vetoes don't
affect bicameral ism and presentment
because they don't affect anyone's
legal rights and duties.
But they do strip the executive
branch of part of the authority it
previously had to promulgate a rule.
And that's what all the cases that
have rejected pre promulgation
vetoes have said.
And that's not just chatter, that's
other cases as well.
And I wanted to make sure we went
back to the misunderstanding the
legislature has and the relevant
legal question.
It's what the legislature has the
power to do, not whether
how long a veto happens to
last or how unhappy the executive
branch happens to be in a particular
situation.
And we we talked before about
Joanie being kissed.
And the New Jersey Supreme
Court has a great quote on this,
where they say, we recognize that
some applications of the veto
would further statutory schemes of
cooperation between the branches.
But it's not necessary to
hypothesize about every conceivable
use. The veto provision gives the
legislature the potential to
disregard it. Will the Constitution
constitutional schemes of checks
and balances and exercising
policymaking power?
And that's exactly our point here.
I also wanted to return to Justice
Hagedorn's question because I've had
more time to think about it, about
bicameral ism and core power.
And I disagree that that
that finding for us by cameral ism
and presentment here has anything to
do with the court making a decision
about whether rulemaking is core
shared powers for the separation of
powers doctrine.
Those are two different
constitutional doctrines.
And agreeing with us on one doesn't
mean that you agree with us
on the language or meaning of
the other.
It's a different.
Why.
Is different?
Can you flesh that out?
Why?
Because.
Because interpreting the bicameral
ism and presentment requirements
requires looking at those
provisions.
Right. And and in Article four,
section C 17, what does it
mean to to pass a law?
Right. That doesn't answer the
question of, well, when an
agency is given statutory power
to make rules, what it what kind of
power is it?
Is that the power that some of the
other states Supreme Courts have
said and an executive power or
is it is it a shared power between
the branches the way Martinez.
Is that because the statute is the
thing that gives the the executive
the power?
In theory.
Yes.
Okay.
I'm just not tracking.
And I just want to make sure I
understand it because this matters
to me.
But I don't see you invoking by
cannibalism a presentment to see
whether the legislature has, in
fact, passed a law,
which is what bicameral is in
presentment. Is your invoking
it as a way to say
that when the legislature
acts in some legally
binding way,
it has to do so through passing
a law, and then you invoke
that for that, which really
is not a bicameral
is presentment argument.
It's the argument that
it's a structural argument.
It's an argument about the
legislature's lane is lawmaking.
How it does it, fine,
But how it does it isn't your
argument. It's that it's lawmaking,
which is a structural separation
of powers argument, I think.
I see. I see.
We're our we're, we're
communicating.
We are taking our
view of the
that when the legislature alters
the legal rights and duties of
parties outside the legislative
branch, that lawmaking is required
is based on our construction
of the word law in Article four,
section 17.
It's not coming from any outside
sources of what the executive
branch's core duties are
in some other in some other
constitutional law.
Does that mean, then,
that
administrative rules are
law in the constitutional
sense?
Is that is out?
Is that what you're it doesn't that
necessarily follow from your
argument?
Well, they could be law for some
purposes and not for others, but
for purposes of Article four,
Section 17, and how we know
when the legislature has to comply
with by carmella's I mean
presentment that what
what's what's a legal change
is when the legislature takes a
rule, the time, the books and pulls
it out, it's that JCR veto.
That's the law change.
If you're arguing, though, that its
actions on administrative rules
constitute lawmaking,
that requires by cumulative
presentment, then you're arguing
that any action on administrative
rules is exercising legislative
power.
I don't think so, Your Honor,
because the legal test we're
suggesting is that the legislature
has to make a law when it changes
the legal rights, duties and
relations of people outside the
legislative branch.
That's the definition.
And so when it's when it takes away
a law or when it strips the agency
of part of its lawmaking authority,
we think both situations change
those legal rights and duties.
That doesn't change the
characteristic of what those
activities,
what rulemaking is.
So you're conceding that rulemaking
is lawmaking?
We are not.
You just said that.
No, I didn't.
You just characterized rules as
lawmaking stripping the executive of
lawmaking functions.
You're right. I used the wrong term.
That a rulemaking function.
I'm sorry. I misspoke.
And then I want to get to Mr.
Caitlyn's policy arguments that this
is a good salutary
check on what could be bad rules.
So there are legal ways to check
agency rulemaking if the if
the rule violates the statute
or it's unconstitutional.
The judiciary can fix that.
But if using JCR
instead of that process
is a dysfunctional process and the
Legal Scholars Amicus was super
helpful in this in talking about
how it is a anti-democratic,
anti transparent, anti
accountability
process, it really discourages, I
think the branches from working
together, discourages
stakeholders and other people from
participating in the rulemaking
process.
And if there are no more questions,
we ask this court to overrule
Martinez and strike the five
challenge statues as
unconstitutional.
Thank you.
Thank you. Thank you for very
interesting oral arguments.
The court is adjourned.
But if we could meet promptly
in conference, that would be great.
Mr..
I'm going to let someone else.
You.
Thank you so much.
Sorry to.