The Dane County Circuit Court today declared yet another piece of Walker-era legislation unconstitutional. Today’s decision held that 2011 Wisconsin Act 21, which took away administrative rulemaking authority from state agencies and put it in the hands of the Governor, is unconstitutional when it is applied to the Superintendent of Public Instruction.
Article X, Section 1 of the Wisconsin Constitution provides that: The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct. The Wisconsin Supreme Court interpreted this provision in the Thompson case in 1996 to mean that, “the legislature may not give equal or superior authority to any “other officer.””
At the time it was enacted, Act 21 was widely criticized as a an overzealous power-grab, meant to diminish the control of agencies, and place that power in the hands of the governor himself. Since its enactment, the most notable use of the power conferred by Act 21 occurred with regard to rulemaking related to the administration of Act 10, another Walker-era piece of legislation that has also now been found unconstitutional. In that instance, the Governor used Act 21 to redefine the scope of collective bargaining to be even more limited than the Republicans who voted to adopt Act 10 envisioned. This spring, the Governor overrode the rulemaking proposed by his own Employment Relations Commission appointees in order to re-define “total base wages” to include only the wages of the lowest paid employees.
In reaching the decision issued today, the Court found that Act 21 impermissibly gave the authority that the Constitution vests in the hands of the Superintendent, to the Governor:
In the court’s view, the feature that renders Act 21 unconstitutional beyond a reasonable doubt is the fact that Act 21 permits the Governor, and the DOA Secretary under certain circumstances, to stop the Superintendent from starting and/or pursuing the process of rulemaking. Under Act 21, before a scope statement can be sent to the Legislature, the Governor must approve it in writing. The Governor is thereby able to block proposed rules. Act 21 conveys similar authority to the DOA Secretary to block proposed rules under certain circumstances.
A copy of today’s Decision and Order can be found here.