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home : opinions : opinions
July 21, 2019

7/3/2019 7:30:00 AM
Our view
In DPI case, Rebecca Bradley hits the mark

It's always nice to have a conservative state Supreme Court - that's elected, by the way - to serve as a check on other, more liberal elected officials, notably our governor, and, far too often, the GOP-dominated Legislature.

Not that the conservative court majority, which is just now swelling to 5-2, always gets it right. They have a notable aversion to open government in their decisions, and they have earned themselves a lifetime membership in the Brotherhood of Justice by voting repeatedly to let law enforcement do whatever it wants to do, warrants be damned.

But on property rights, the conservative justices have been stellar, and more recently they have made outstanding decisions that curb the New Bossism of the bureaucratic state, including letting stand a session in which the Legislature clamped down on the use of so-called agency guidance documents.

Agency guidance documents were the new administrative rules, which agencies began to use with a sledgehammer after the Legislature clamped down on administrative rules themselves.

Last week came another significant decision, a 4-2 ruling that strips the state Department of Public Instruction of its ability to write administrative rules on its own, without getting gubernatorial approval.

In other words, as the Wisconsin Institute for Law & Liberty put it, the agency can no longer make law. Using a fake constitutional justification, that's just what the rogue agency has been doing.

The high court has rightly put a stop to it.

But in making the correct call, the majority decision went way around the bend and actually endorsed the progressive, liberal imprint of what government should be - of, by, and for bureaucrats. Oh sure, the majority opined, the ability of state agencies to write rules is subordinate to the Legislature, and is a power delegated by the Legislature. But make no mistake, the decision went on to state, the bureaucracy is the stick that stirs the drink of efficient government.

"We have long recognized that 'the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government,'" the justices effused, quoting an earlier court decision.

Nothing could be further from the truth, and two of the four justices forming the majority decision called them on it. Justice Daniel Kelly simply noted that he did not concur with that paragraph, but justice Rebecca Bradley went on an impassioned and warranted tirade against it.

That means only two of the four justices forming the majority decision - chief justice Patience Roggensack and justice Annette Ziegler - agree that the best government is the government that governs most, as the bureaucratic motto goes.

Roggensack and Ziegler and also Kelly then took a backhanded swat at Bradley for her concurring but diverging opinion, calling her comments against the bureaucratic state "dogmatic."

They were anything but dogmatic. Her observations were fresh and courageous in an age when the deep state rules even the judiciary.

More important, they were necessary. In fact, it was Roggensack and Ziegler who were being dogmatic by brushing aside Bradley's warning of danger and endorsing without question the rule of the administrative state.

As Bradley pointed out, neither the federal or our state constitutions provide for an administrative state. It provides for a judiciary; it provides for an elected legislative branch; it provides for an elected executive branch.

But nowhere does it provide for an unelected, powerful, and bureaucratic leviathan, to use Bradley's word.

By insisting that such an unaccountable administrative state is a necessary component of our government, Roggensack and Ziegler sought to rewrite the constitution itself by inserting it into a document that does not contain it.

Thank goodness, then, that Bradley called them out with her "dogma."

This kind of big government thinking has led to a generation of bad decisions and principles, including the preposterous position that courts must give "deference' to state agency positions so long as the agency employed its expertise or specialized knowledge in forming the interpretation.

That expertise was often bogus, of course, and justices such as the now retired David Prosser often questioned the deference doctrine, arguing that the court was ceding its constitutional responsibilities by embracing it.

Last year the court did end its policy of deference, saying those administrative positions are useful for their persuasive value but not required, but it was the bureaucratic mindset that got us deference in the first place.

The language of last week's decision shows that some justices aren't yet set free from that mindset; Bradley did her best to liberate their minds.

As Bradley said, the Founders were not concerned with efficient government; they were concerned with protecting individual liberty and freedom. The government that does that is often messy. Somewhere along the line, the Progressives and big-government Republicans decided they didn't like messy.

They liked orderly and efficient. In other words, they wanted to tell us how to live our lives according to what they have planned for us.

Even the majority decision took pains to point out that in Wisconsin alone -not counting federal regulations - the administrative code is "more than 11,000 pages long with just under 1,800 chapters of regulations that affect businesses, local governments, licensed professionals, and consumers and touch[es] virtually every industry in Wisconsin."

That should have scared them, but it didn't. In their minds, it justifies the Legislature's delegation of authority to the bureaucracy.

In her opinion, Bradley correctly points out that most of this work should be done by the Legislature: "Returning all lawmaking responsibilities to the Legislature would remove the shroud over administrative rule making, placing the lawmaking process back in the public eye where it constitutionally belongs."

As Bradley also pointed put, it would put an end to the legislative game of passing a law with uncontroversial language and leaving it to bureaucrats to do the controversial dirty work of details.

It would also put an end to legislative laziness, forcing lawmakers to actually write the laws they intend to enact. Most important, though, it would curb the power of bureaucrats to write whatever laws they want, the people be damned.

Some legislators have awakened to that responsibility and reality. In a recent conversation with The Times, state Sen Tom Tiffany (R-Hazelhurst) pointed to the extensive rewrite of mining laws the Legislature undertook several years back, saying it was written in precise detail to prevent bureaucratic manipulation.

That's the way it should be with all laws. The pages of the statutes should dwarf the number of administrative code pages, not the other way around, as it currently is.

Yes, the Legislature would get less done - only the important stuff, that is, the core functions of government - but then isn't that the way it should be?

It seems some Supreme Court justices need to get woke, too, and thank justice Bradley for setting off the alarm clock.

In setting off that alarm, Bradley courageously said it all about the New Bossism of the bureaucratic state: "The concentration of power within an administrative leviathan clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty."

That's a patriot's passionate defense of freedom, not dogma, and it couldn't be said any better or clearer.

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