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chapter 165 because the governor requested that he bring this case.
Now on the standing question, the case lawyer honors referring to 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
sews 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.
The executive branch has challenged the standing of the legislature in past cases to do the
same.
Well 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.
Markline, I want to return to that Markline one again shorthand, you're suggesting some
inconsistency which suggests to me that you think Markline 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
evolved completely different things, right, we're dealing with rulemaking here.
We didn't deal with that in Evers one, we were dealing with an appropriation that the
legislature made and then the executive branch was trying to carry out the law as we said
in Markline 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 seventeen and eighteen and I think this comes
up in SEIU two at paragraph sixty two 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, I'm not arguing that there's that Markline one or Evers one already decided
the issue.
Okay so you did, I know just as Ann Walsh barely asked you, lead with your right and
then lead with your left.
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.
What's your platinum?
Right.
I was going to ask what's your platinum button, but without combining theories.
Because I think what I heard you say is other courts have done both by caramelism and persimmon
and core 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 caramelism and presentment and shared power's grounds.
And we, you know, we'd like to cover 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 what's not.
Thank you.
I'm sorry.
I'm sorry.
No, go ahead.
Thank you.
Let me follow up on that.
Former Chief Justice Shirley Abrahamson 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 just asked, if you were writing this, how would you write it?
So if I personally were writing it and had the votes to do so, I would decide it on
both by caramelism and presentment and core powers grounds and I would also be sure to
include the intrusion and judicial power.
Okay.
If you exercised a little judicial restraint and didn't do the whole ball of wax, okay,
how would you write it?
So again, 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 Dalit
by caramelism and presentment plus a shared powers analysis.
My question is about the facial challenge standard.
Your friends on their side cite SEIU on page 21 of their brief and they say SEIU reaffirmed
this court's, quote, clear and long standing and of, quote, facial challenge standard that
requires the challenger to show that, quote, all applications and, quote, of the challenge
law are unconstitutional and then they go through painstakingly, right, each subsection
of the statute at issue here and they demonstrate how it would be possible for that rule to
be enacted.
And 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 isn't as 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.
And Joanie 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 in Stencliffe, 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.
Thank you, Your Honor.
We should state them for the legislature.
Petitioners here are bringing a remarkable five facial challenges while asking this court
to overrule multiple unanimous precedents.
Justice Porto Seiwitz, I'm going to answer your first question that began the argument
which I would expect my friend to 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 adopter
or proposed rules.
Their weakest challenges, and I think they're, once we dig in, you'll see, I hope the court
will see in substantial challenges, are to all of the temporary things that either the
standing committee, JCRER, can do, which essentially just serve as a grace period, a waiting period
for the exercise of bicameral imprisonment.
I don't.
Where does the Constitution say there's a grace period for the exercise of bicameralism
and then presentment?
Well, no.
So the way that those provisions operate, Your Honor, is they operate, like, I don't think
there would be any dispute of constitutionality if the statute was as follows.
After the agency promulgates 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 bicameralism
and 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 legislature's...
Right.
So may I finish Your Honor's?
Yeah.
Yeah.
It's important.
So the only difference in those three provisions that I think are in substantial, their challenges
is that instead of setting out the six month period that will be unchangeable for the
legislature to decide whether it wants to repeal the rule by both branches acting and
setting to the governor, it's an option.
The JCRER can trigger essentially that waiting period 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 constitutional problem, which is ultimately voting in both branches
and setting to the governor the decision of whether to stop the rule.
JCRER is not the legislature.
It's 10 people, right?
It's 10 people deciding to veto as opposed to both branches of the legislature for being
presented with exercise and bicameralism and presentment.
So certainly on their one challenge that I think has some strength on the permanent
suspension, those 10 people are vetoing for the other challenges.
It's not 10 people though.
I think that's really, what's the fewest number, and I'm not sure if I'm briefing actually
if it's three or four, is it three or four?
I don't know, but it is less because it's a quarter.
Okay, so it's about 3% of the elected representatives in the state.
But the action that those legislators are taking for the temporary provisions are not
a legislative veto at all, and I'm going to repeat that again.
Those provisions are not a legislative veto at all.
All they are doing is creating a grace period, no different from a sixth 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 bicameralism, 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 three or four people.
And that dead stop.
There's no other branch, there's no governor, there's no veto.
That's it.
It's three or four people.
It's that argument.
Come on.
It just doesn't make any sense.
You're on your honor.
I'm sorry.
What you're saying is completely wrong, your honor.
What happens?
We'll see.
We'll see.
We'll see about that.
I know.
Obviously, your honor.
What?
Correct.
If the legislature does not adopt that bill blocking the rule and the governor signs it
or the governor's veto is overruled, the rule goes into effect.
Those three, putting aside the permanent suspension provision, which I agree, they're
arguments stronger, for the others, if bicameralism 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.
Okay.
Council, 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 Raar, or however it's pronounced,
I call it J. Carr, 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 conceded is stronger for them.
And they're using the existence of that one example, which I grant, the permanent suspension
usually is done through, and other states is done through joint votes of both branches,
both houses of legislature without the governor.
But that is an unusual provision.
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 eight and 14 states do something like that.
I mean, obviously each state has structured a little bit differently.
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 one, or one of two, was Missouri, where the
Constitution specifically empowers agency rule making in the text of the Constitution.
So almost all of their cases, and all of the examples that the scholars are using are
on that fifth category, the permanent suspension, where Justice Crowski, you were exactly correct
there.
For the permanent stock.
So you're calling, I just want to make sure you and I are using the same words, okay?
I think in the briefing that 227-95-DM is the indefinite objection.
Yes.
Okay, hold on.
Just hold on.
In 227-26-2-I-M 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 the DM1, the indefinite and permanent,
I think it's the same objection.
Yes.
Not the suspension.
Right, right.
So for the DM1, that's their strongest argument.
That's the one that the legal scholars and that also is almost entirely deals with.
Council, 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 posing council, the current arrangement in the way government
operates is a kind of a gentleman's agreement.
I've not heard any argument from you that, and if there is, I'm happy to hear it, but
that if you look at the original public meeting of the Wisconsin Constitution, that the kind
of blending and melting of powers that currently is in place, that 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
meeting of the Constitution and its structure, or do we say we've kind of blessed it for
pragmatic or other grounds, and just try to do some intermediate line drawing.
The argument you've made to us is, listen, that this has been blessed by this court 33
years ago.
Let's, you know, we need to not just disrupt government now and 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 on how we're
supposed to approach these things.
Yes, so I think that if your honors were to go down to the original public meeting of
the Constitution, the administrative states got to go.
I mean, that's a fundamental problem.
The early cases that your honor pointed to in your palm descent, you know, those were
about agencies having the authority to do things with the internal organization of
government.
This notion that administrative agencies can create law, and let's mean to make sure
they know law, that is so far water under the bridge.
And I'm not standing here, your honors, saying that this court should throw out the entire
administrative state, that is a lot of under the bridge.
But I think it is quite unfair then to the legislature to say, well, where's your original
public meeting?
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, and I know Justice Bradley doesn't like that, and if you're
on our head, you know-
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 the legislature seeds its power to unelected bureaucrats and 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 was kind of a famous dispute between Justice Thomas and Justice Scalia
back in the day, where Justice Thomas's position was, you know, let the government
fall where it is, and we're going to force the Constitution, Hohog.
And Justice Scalia said, you know, I'm not going to bring down the home government.
I think he called himself a Fain hydrant originalist, you know.
And so that's, you know, there's two ways to approach the realism of that way.
But just to follow up on that, then, I mean, you know, what's the principal basis for
making a decision, then?
It just feels like then we're just trying to figure out-
The separation of powers is 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 each branch stays in their lane.
And so, at least that's how I conceive of it.
And so, now I think the Constitution does.
And if so, I don't know what a principal basis is to do line drawing other than go to the
structure of the Constitution.
If it's just, yeah, I mean, what's a temporary pause, not a big deal?
Maybe permanence too much.
I mean, 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 administrative state rulemaking is permissible, just grant
me that.
Obviously, if one assumes that it's not permissible, then you've got a lot bigger problems.
But if one assumes that it's permissible, then it must be so that the legislature could
pass the following law.
Before an agency adopts any law, before agency adopts any regulation, we have a six-month
grace period where the legislature can choose, through bicameralism presentment, to overrule
that rule.
So that, that I think is uncontroversial, the legislature could do that.
Can't the legislature do that anyway?
They can always pull past the law by bicameralism and presentment after an agency passes a rule.
No, no.
Yes, of course your example is correct.
No, no, but my example builds in something further, quite important to those three categories
of their facial challenges that I think are quite weak.
The law that I'm hypothesizing is not only with the legislature passed law, but the law
with a prior law would say that no rule that an agency promulgates takes the facts for
six months.
Sure.
And so when we're talking about the separation of powers, I would respectfully submit that
the regimes that are embedded in those three 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 trigger.
A committee.
Yes.
Or a committee.
Yes.
So you see nothing in the Constitution where three percent of the body of governing electives
that the people have chosen, where three percent gets to make that choice.
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 camelism and presumption.
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's rulemaking is being done, is giving away its power to, let me
move on.
You can't.
Sure.
It's giving away its power to the executive agencies.
So what, if it enacts a law, a law that says that in giving away that power to you, we
are interposing one of our committees.
There is nothing offensive in the separation of powers 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, Justice.
It's still kind of like you want us to be in the present.
I really wanted to, you know, when we were, when I was before you in Mark line one or
Evers one, where I was like, 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 in Mark line, I was disappointed in myself and afterwards, I couldn't think of a limiting
principle.
Here, a limiting principle that would not require overruling unanimous cases that prior
justices of this court have ruled on, unanimous cases that multiple justices of this court,
including, you know, Justice Daller, Justice Crawford you have ruled on, is readily apparent,
which is a permanent or indefinite objection that's out.
These temporary ones, just like Martinez, that's fine.
This time, we bring to you, Justice Bradley, a middle ground consistent with everything
this court has ever said and consistent with, you know, keeping the balance and consistent
with separation of powers.
Counsel, do you see a principled basis for the distinction that Justice Daller 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.
And I have not heard one from my friend Jason.
Do 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?
I know, if they can give it to, if they can give that power to administrative agencies,
they can give a sliver of that sort of power to JCRR.
Let me just push back if I can or at least test this question of whether any kind of
rulemaking is automatically a delegation of legislative power.
Sometimes we think about these things broadly, you know, like maybe the clear air access,
keep the air clean, you know, and then you have all these policy choices that are made.
So understand sort of the thought process behind the idea that there's a bunch of policy choices
that are being made there, maybe that looks a little bit more like the kind of thing
the legislature's supposed to be doing obviously, right?
But a lot of administrative rules, but most of them, I think are based upon much more
specific statutes, you know, tax product X.
And so 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 sure analytically why that necessarily
falls into a kind of delegated legislative power.
I mean, it's not the case to me, I don't know 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 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 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 bunnies, okay, I don't know, I thought of toy bunnies,
toy bunnies, I don't know, electronic toy bunnies.
Oh, you're not going to live with that.
I should have thought about this ahead of time, but that's what came to mind.
I have no idea why.
Oh, my God.
But suppose you want to tax toy bunnies, all right, and so 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, oh, but we need to now come up with a rule 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.
What do you say that's my argument?
That's literally every case this court has ever decided.
The only cases that my friends can cite, and we're cited in your dissent and palm involve
agency decisions that impact just the internal organization of government.
That is to say, who is in what civil service classification or who could 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 where it gets a little blurry, and
then at minimum, it's a mixed power.
And in no 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, I'm with Justice Rebecca Bradley on that.
I think it's legislative power.
But I think the only other possible choice is a mixed power.
And executive power, writ large, certainly not.
It's legislative power because why, can you expand on that?
Because you're making decisions that govern the perspective conduct of individuals, their businesses, their lives.
That's why.
But 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 law making, right?
And the Constitution says legislature gets to pass laws.
That's how it determines what the law is.
But you don't remember, the agencies are in fact law making.
I mean, this court, I mean, this court statement in 1928, in the Whitman case,
it was praised as just being candid.
But let's take the toy bodies example.
If the agency, if the statute says, choose which kind of products are going to be taxed.
That is a policy choice that in the court, at the founding,
is expected to be made by legislature.
Given the complexities of modern government, or you could have, you could ascribe more nefarious motives to it.
The legislation has decided it cannot practically make all those choices.
Well, that gets to maybe the cousin of this, that Justice Bradley was talking about.
So please tax products that will raise a sex dollars might be a non-delegation problem.
And that you don't have a sufficiently specific law that actually makes those policy choices.
I think 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 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 these cases and
hearing the questions about regional public meaning is, yes,
if you enforce the non-delegation doctrine, the correct way as the founders 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 implications of your question are violation of 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 how many angels would dance on the head of a pin?
We are in the world where these contested provisions, these five provisions,
are in fact governing what under these republic meaning is legislative law making in those courts courts.
And so in that circumstance, you've got to just imply that doctrine fairly.
Mr. Salin, I've heard you say a couple of times today.
And 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.
I think he's calling it a permanent objection.
I think we're talking about two twenties.
Indefinite objection, I think, yeah.
Yeah, okay, indefinite objection.
Yeah, I'm not trying to parse words, I really am trying 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 on that provision?
What 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 rule goes back into effect.
So what we said in our papers in this case, and then the right there, we're chosen carefully,
that since this is a facial challenge, and we can hypothesize a circumstance where it would in fact be
constitutional, then the facial challenge would fail.
However, under Martinez, I do not have an argument in under presenting one,
that under Martinez, when you have no end point, where bicamels and
presentment must be exercised, then those provisions can survive Martinez.
And this is what I mean, just broadly about presenting, taking very, very to heart the statements
that were said at oral argument in Markland, about giving this court some middle ground,
so that we're not in this all and nothing world.
So that we don't have, and one of their two examples here involved in deference suspension.
So if your honor goes on that, they would win that aspect, that'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 that 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.
And the questions that you, I believe you asked me at the Markland argument,
it's like, what are the standards here?
When 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 camelism presented.
Right, I understand that, I mean, 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 we can use, we can use toy electric bunnies.
But I, I, I want-
So they're electric, can you see it?
No, they're not electric.
No, they're not electric.
No, they're not electric.
I don't, I'm sorry, Justice Agron.
I thought that's, it's hard to-
She's adding to the law.
Pass a rule.
Hey, 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 refer to it as torture on page 14 of their brief.
And, 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 non-conforming, 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's enforcing rigid gender roles through talk therapy.
It's repeating homophobic or transphobic slurs.
It's isolation from friends and 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 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 Rule Board proposed a rule to stop these therapies, excuse me, to stop
therapists from torturing their clients.
They defined this as 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 was a rule that they passed in 2020.
Between 2020 and April of 2024, there were several pauses and one of them was the, was
the suspension under 2D.
One was the promulgation pause under 5C.
But the sum total of that is that the rule was shoved 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.
Poor 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 as a matter
of the constitutional theories that I've already asked here.
Really, in order to decide whether the kind of structure here is constitutional, 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, Your Honor, 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 JCRAR veto provisions were
stopping the things that are bad.
My point is that you are basically saying that it is okay for three or four members of
the legislature to put on hold something, to put on hold a rule that literally is saving
people's lives.
And I'm not talking about the indefinite suspension here.
I mean this between, the rule was, it was shelved four months between February 2020
and June 2020 because of the promulgation pause.
It was shelved six months between June 2020 and January 21 because of a JCRAR objection
between January 21 and March 2022, four month pause because of proposed bills that failed.
Then it took nine months to take effect.
It was in effect for only six weeks before there was a 15 month suspension under 2D.
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 can't, you know, Justice Della said, when do we pause someone's constitution 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, these provisions
can obviously be used for good or ill, depending on what one's policy purposes or any particular
rule.
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 you're honored, join that opinion.
Your honor was in here yet.
You're honored, Justice Della.
I'm honored.
And I'll actually join that opinion.
I apologize.
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 the difference between a facial and as applied challenge.
Certainly these provisions do not have to operate that way.
It was a 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 wasn't in regular session.
So if your honors are concerned about the aspects of these provisions or one of the provisions
that could lead to delays of many months or years, certainly your honors 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, and I don't mix in my terms.
I'm going to, I think you want to use another term then, then attractive.
I mean, this is horrific.
The other was a circumstance where the happenstance of when the calendar occurred, when the rule
was issued, and the fact that additional, that 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 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 JHRAR said for the legislature to exercise is 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.
In the council, 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 one could easily imagine a proposed rule that
would offend the justices of this court just as much as this veto offends some justice
of this court.
But if that happened, the legislature can meet any time and overrule and exercise by
criminal resentment and get rid of the agency rule.
No, 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 then, you know, something that
the court doesn't like and so then the martinez is unoverrolled?
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 processed 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 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 JCRER that they can just – if they can delegate it to the executive, they can delegate
it to JCRER.
What you're forgetting I think is that they – it is the legislature that is bound by
bicameralism and presumptent, 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 bicameralism and presumptent?
Under the regime that martinez upheld unanimously –
Take away martinez.
Under the statute that – I'm not allowed to mention martinez upheld unanimous.
The bicameralism presumptent – the bicameralism presumptent absolutely happens and in an official
challenge we must assume that it happens in 30 days.
Okay, but in 30 days is not – where does it say in the Constitution that it happens
in 30 days?
Where does that – where does it say that?
Bicameralism – so let's do the constitutional text then.
What the Constitution actually says about bicameralism and presumptent is that section – so, Article
4, Section 17 says no law shall be enacted except by bill.
The JCRER action here is not a law, so Article 4, Section 17 does not apply.
Then Article 5, Section 10 says every bill shall be passed by legislature shall be presented
to the governor, which JCRER did is not a bill.
So the entire bicameralism and presumptent 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 a proposed rule, that's true, it's a proposed rule, no law has been changed.
Just like the legislature could say, that rule will not take effect for six months until
we have a chance to do a vote through both houses presented to the governor to get rivet.
The old legislature could say, if a committee says that this is objectionable, we're going
to – in 30 days, we're going to have a bill that does the exact same thing.
That is not changing the law at all.
The conversion therapy proposed rule was not the law.
It was just a proposed rule at that point, and its proposed nature ended up being extended
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 conditions on which
you get it.
And if you don't want to make the rules, don't 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 is not proposed that this court adopt cheddar in three
different cases in Martinez, unanimous rejected, and SCIU, in that provision, unanimous rejected
including in a decision that your honor joined.
In Markline, as Justice Chicago had pointed out, they wrote the cheddar bus, and while
they won the case, they got no citations positively to cheddar there as far as I can see.
So they've now tried three times, maybe four times the charm.
Certainly, as I expressed at the oral argument in Markline 1, I think cheddar was wrongly
decided.
I think the dissent by Justice White was the correct approach.
This court has taken neither Justice White nor the majority's approach in cheddar.
This court has unanimously done Martinez, unanimously, including in a decision that I'm sorry I
know your discussion didn't join, but Justice Dalit and Justice Bradley did join in SCIU.
And so that's what I'm asking the court to stick to, to keep its word to the legislature,
because as Justice Hagerone said, we've been making laws for a long time in reliance on
this court, 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.
You still give away that power, but now you don't have the check on that power.
That was be quite a, a bait and switch on the legislature from, with respect to this court.
Genanimously told us this was all right.
Mr. Satan.
I want to ask you one question about the standard of review, because I'm, 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 in Markline 1.
And I, I do not believe that's the case.
The majority opinion written by Justice Rebecca Bradley on page 8 of Markline said, in making
a facial challenge, petitioners face a tall task, then there was a site to SCIU, and
then she wrote the challenging part of the law show that the statute cannot be enforced
under any circumstances.
I searched the, the main body of the majority opinion and beyond a reasonable doubt doesn't
come up at all.
It does come up in Justice Anne Walsh Bradley's concurrence in paragraph 42.
She writes, I emphasize that our 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 in text.
So, so I don't believe the, I'm sure any of my, well, any of my colleagues disagree and
I see Justice Rebecca Bradley, I don't think that's right, I don't think what you wrote
is right as far as that this court adhering to that standard, and I, I will say, I noticed
that point in the reply brief, you know, certainly in other cases, including the recent case
that the court has applied that, I agree with the reply brief that the, that they, what
they're actually, they were not asking to overturn that aspect of Martinez and SCIU,
they were asking to overturn the, the aspect with that of Martinez, SCIU, Gabler, all
those cases that say that for a facial challenge, you have to have every single application,
so I take that point in the reply brief and can see that here.
Okay.
Please.
No, I just, I just wanted to, that was it, you just mentioned overruling cases I asked
here, posing 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, it was written by Rosenberry, a good friend of mine in spirit,
he was a little older than I am in 1928.
And so I give you, and he said in that case that it's a legislative power, this rule.
Yeah, absolutely.
So what, so what cases would we have to overrule if we defined that this is a core executive
power?
You'd have to overrule Whitman, Schmidt, unanimous decision in Martinez, the unanimous aspect
of SCIU, that's just a rule, you know, I mean, I found their brief quite jarring and
obviously as was explored last time at the mark line of warring, we just, we just spur
of spirits, I believe, certainly we have, I have asked representing various clients
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.
It was one time where they asked to overrule that in a footnote, like one sentence footnote,
it really isn't, you know, not a shift from that.
That wasn't a bad idea.
We ended up doing that about six months later.
That was an Alan Johnson to overrule a shift from a footnote eight, we did that about six
months later.
Yeah.
Two of vigorous separate writing.
Yeah.
So I mean, it's certainly not my understanding of this, of this course approach to sari decisis
and certainly not my, my understanding of your honors approach in particular to star
decisisis.
You know, I mean, I hope this is not my last time arguing before you, your honor, but it
may be.
And I, you know, I've always thought that I'm going to get your vote in an important
case where it was separated from.
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, in treatise of mark line very seriously, gave your honors
a middle ground position, you know, essentially said that one of the statutes that challenge
share is very difficult to defend.
You know, you know, it's maybe our last time together.
I would think that he's putting out all the stuff where we come up and I can say that
I got to bring out a dozen rallies vote.
And so I just want to quickly, oh, you're not going to let a hand on that.
You should.
You've offered what you say as a middle ground in some ways.
I think your main argument is a middle ground.
Yes.
What I think you, you, you are suggesting to us from a legal basis is to basically affirm
Martinez and in which you would say, 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
status, 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.
Well, how would you describe the legal basis, the principled basis for the middle ground
that you're offering for us?
The way that I would write the opinion to answer for that 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, it's necessary for this court
to spell out the details of various other principles of separation of powers to deal
with the non-delegation doctrine now, you fool some way.
I would say Martinez, unanimous, you know, several decades ago, lots of reliance, not
on sound principle, et cetera, et cetera, apply the Johnson control factors.
Once that part of the opinion is written that Martinez is the law of the land, which is,
and then the analysis is easy with respect, and I certainly understand that some justice
on this court may not love Martinez, but started to say this is no good when it only applies
to cases that we fully agree with.
It's hard to come up with an example for a more compelling situation to apply started
to say this to a case that maybe, you know, fully agree with, that unanimous decision
in the separation of context when there's been massive reliance by a co-equal branch
of government.
Thank you, honors.
Thank you.
Thank you.
Thank you.
Rebecca.
Okay.
Glad to get through.
I want to start with bicameralism and presentment.
The premise of Mr. Staitland's argument today is that the Constitution offers a grace period.
But as he indicated in his response to Justice ballot, 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 legislators is a very long time, typically until the end
of the legislative session for each veto, and as we know, they can stack.
The legislature does a 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, do you agree?
Let's deal with the case we have here, your honor, that is bringing on delegation case
and we'll defend it.
I'm excited.
But it's not before you today.
But you can.
So let me get back to the lack of doctrinal basis for the concession of the legislature.
I have only a few minutes here, I understand.
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 bicameralism and presentment, we're not dealing with non-delegation right
now.
I'm not talking about that.
I'm not talking about that.
I'm happy to talk about it.
But bicameralism and 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 227-19-5-DM.
That's not a doctrinal difference.
That's just conceding on 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 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-promigation
vetoes don't affect bicameralism 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-promigation
vetoes have said, and that's not just Chata, that's other cases as well.
And I wanted to make sure we went back to the misunderstanding the legislature has on
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 talked before about Joanie B. and Stenkift, 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 constitutional
schemes of checks and balances and exercising policy making power, and that's exactly our
point here.
I also wanted to return to Justice Hagadorn's question because I've had more time to think
about it about bicameralism and core power, and I disagree that finding for us on bicameralism
and presentment here has anything to do with the court making a decision about whether
rulemaking is core or 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.
Why is that?
It's a different factor.
Why is that?
It's a different factor.
Why?
Because interpreting the bicameralism and presentment requirements requires looking at those provisions,
right, in Article 4, Section 17, what does it mean to pass a law, right?
That doesn't answer the question of, well, when an agency has given statutory power to
make rules, what kind of power is it?
Is it the power that some of the other state Supreme Courts have said and an executive
power or is it a shared power between the branches and way martina?
Is that because the statute is the thing that gives 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 bicameralism and presentment to see whether the legislature
has, in fact, passed a law, which is what bicameralism and presentment is.
Or 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 bicameralism and 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.
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 where we're miscommunicating.
We are taking our view of the, when the legislature alters the legal rights and duties of parties
outside the legislative branch, the lawmaking is required, is based on our construction
of the word law in Article 4, 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.
Well, does that mean then that administrative rules are law in the constitutional sense?
Is that what your, 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 4, Section 17 and how we know when the legislature has
to comply with bicameralism and presentment, what's a legal change is when the legislature
takes a rule that's on the books and pulls it out.
It's that JCRER veto, that's the law change.
If you're arguing though that it's actions on administrative rules constitute lawmaking
that requires bicameralism and presentment, then you're arguing that any action 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 takes away a law or when it strips the agency a part of its lawmaking authority,
we think both situations change those legal rights and duties.
And it doesn't change the characteristic of what those activities, what rulemaking is.
So you're conceiving 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.
So you're right, I use the wrong term, but a rulemaking function.
I'm sorry, I misspoke.
And then I want to get to Mr.
St. Lin'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 rule violates a statute or it's unconstitutional, the judiciary can fix that.
But if using JCRAR instead of that process is a dysfunctional process.
And the legal scholar's amicus was super helpful on this in talking about how it is an anti-democratic,
anti-transparent, anti-accountability process that really discourages,
I think, the branches from working together, discourages a 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.
Thank you.
Thank you so much for saying that.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.