>> Even a casual observer could conclude the relationship
between the Republican legislature and the Democratic
governor is dysfunctional in Wisconsin. Long stretches where
they don't talk to each other, lawsuits, vetoes, and end
arounds to get their ways. Now, the very balance of power
between the legislature and the executive branch is in the hands
of the Wisconsin Supreme Court with a series of cases having to
do with whether administrative rules can be effectively vetoed
by the legislature. It's a lot to unpack, and here to do it,
senior political reporter Zach Schultz, who joins us from the
Supreme Court. Hi, Zach. Hello, Fred. So first describe the
kinds of rules and over what that we're talking about.
>> Well, the particular cases the Supreme Court heard this
week, one of them was a rule about building codes. And
another rule had to do with a ban on conversion therapy, which
is a type of therapy that tries to convince LGBTQ people that
they are actually straight people. And the state wanted to
ban that. And it's a committee in the legislature that Waukesha
the Joint Committee for the Review of Administrative Rules.
It's a small committee with just a handful of members that can
eventually put a hold on any of these rules coming out of
administrative agencies and stop them from taking effect. And
when they do that, it's in effect, a legislative veto over
administrative power. And the Supreme Court is trying to weigh
whether that's too much, whether that's actually allowed under
the Constitution, and where that balance of power should reside.
>> So what has the Republican majority joint Committee on
Review of these rules been able to do with some of Evers
authority to set various rules? >> Well, they basically have
been able to put them on hold. They have various authority.
When a rule goes into place, they can call the committee into
action and they can hold the rule. They can suspend it for a
short amount of time, or they can suspend it for up to the
full two year legislative cycle and then come back into the next
session and suspend it again, which effectively creates a
permanent suspension of the rule. All they have to do is
introduce a bill in the legislature that would overrule
the rule, and that gets put on the table, it gets held and it
has a hearing committee goes nowhere. And effectively the
rule is suspended. The ban on conversion therapy, for
instance, was first introduced in 2020, and it's only been in
effect for a handful of weeks over the nearly five years since
then. Because Jcar keeps coming in and suspending it, it's in
effect for the moment. Right now. But starting tomorrow, they
can come back into session and put a hold on that rule, and
then it will be suspended for as long as they want, possibly the
next two years. >> So a potential swing vote on
the court in the way of justice, Bryan Hagedorn said during oral
arguments that this decision is especially consequential for the
operation of government. Describe how.
>> Well, the kind of goes back to the bedrock of how we create
laws. The legislature could pass a law, the governor can veto it.
If the governor signs it. Often the law is broad, and then there
are agencies. The DNR or the Department of Health and Family
Services. They have to create rules that carry out how those
laws apply to businesses and people throughout the state.
Those rules effectively have the power of law behind them, and
often they can become very granular and specific. And
sometimes it takes years to promulgate or create that rule
and put it into place. But then this legislative committee can
come back and veto that rule and just send it back, and it goes
nowhere. So it's a legislative veto on administrative power. If
the Supreme Court decides that that no longer applies, then the
rules from the administration go into effect, essentially with
the power of law. And that could reshape what the legislature
writes into their own laws. And that balance of power, of how
the two branches of government work together.
allowed such power under the Wisconsin Constitution or other
courts case precedent? >> Well, the one that they're
looking at the most is a Supreme Court decision from 1992 called
Martinez. And the question is whether they should overturn
that rule or just adjust it slightly, because the power of
this committee did grow in the Walker era, he gave them more
expansive powers to hold and suspend some of these rules for
longer. But even Hagedorn in his comments from during oral
arguments, said that there really is no basis for this
relationship in the Constitution. He called it a
gentleman's agreement between the two branches of government,
of how they would go about doing it, because since 1992, when the
legislature has created laws, they've done it with the
understanding that when it comes to creating rules under that
law, of how it would be applied, the legislature would have some
sort of say over what those rules said, and that could shift
what kind of laws they write and what how old laws are
interpreted under rules. >> So this court could change
the current balance of power as we know it.
>> Absolutely, fundamentally change, especially the way that
the makeup has been in the six years we've had with Governor
Evers in power and with Republicans in control of the
legislature. So certainly the next two years going forward.
But fundamentally beyond the timescale of this, because if
they change the way this works, then that's a Supreme Court
decision, just like Martinez was on the books for 30 some years.
This could be on the books for generations to come. Future
administrations, either Republican or Democratic
governors and legislatures of either party, would be under
this same system, having to figure out how does it apply,
how do they write a law and how do they create a rule that is
fair for everyone? also released a decision on
whether the names and addresses of people deemed incompetent to
vote should be made public. What did they do with that case?
>> Essentially, the Supreme Court of Appeals. It's kind of a
convoluted case. The essence of it is whether a conservative
voter interest group could get access to the records of all
those voters, all those people in the state that are deemed
incompetent to vote, and whether they could then check those
names against the voter registration rolls to determine
if someone was voting on their behalf, if they're not supposed
to be a court of appeals. And Madison said, no, you don't. You
don't have a right to those those are privacy issues. A
second court of appeals in Waukesha, a conservative one,
said, no, we think you have a right to those. The Supreme
Court kicked it back and said, you can't overrule one Supreme 1
appeals court. Do it right, and then we'll decide if we take the
case properly. So for right now, they don't have access to those
records. That's the status quo for the moment.
>> All right. Well thank you. Thank you for all your reporting