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August 20, 2019

7/3/2019 7:28:00 AM
Supreme Court: DPI must answer to governor on rules
Justices: Rule making a legislative grant, not a constitutional power

Richard Moore
Investigative Reporter

In a major 4-2 decision last week, the state Supreme Court ruled that the state Superintendent of Public Instruction (SPI) does not have the constitutional authority to make administrative rules that have the force and effect of law.

The case settles an ongoing debate over the constitutional powers of the state superintendent. In this case, two licensed teachers and two school board members brought an action against superintendent Carolyn Stanford Taylor and the Department of Public Instruction (DPI), arguing that the SPI and DPI must receive written approval from the governor to promulgate an administrative rule, per statutory requirements.

The SPI and DPI argued that gubernatorial approval was unconstitutional because the Wisconsin constitution states that no other officer may be placed in a position equal or superior to that of the SPI with regard to the "supervision of public instruction."

In 2016, as the Wisconsin Institute for Law & Liberty (WILL) observes, a divided Supreme Court held that a law requiring the Department of Public Instruction to obtain gubernatorial approval for regulations was an unconstitutional violation of the superintendent's constitutional right to supervise public instruction.

However, while that decision produced a decision, it did not produce a majority for a legal rule, and in 2017 the issue arose again when superintendent Tony Evers refused to follow the requirements of the newly enacted REINS Act, a law that provided more oversight over all agencies' rule making. Evers cited the 2016 decision in refusing to follow the new law.

WILL went to court on behalf of the petitioners, asking the Supreme Court to hear the case directly, which the court did.

This week, WILL president and general counsel Rick Esenberg praised the decision.

"Today, the Wisconsin Supreme Court held that the state superintendent of Public Instruction does not have the constitutional right to make laws," Esenberg said. "While the legislature can delegate the limited authority to make rules, today's decision makes clear that it can also limit and control this rule making. It may ask the governor to exercise accountability by approving proposed rules."

Esenberg said the decision was also a victory for school choice.

"Given that the DPI has generally been a captive of the educational establishment and hostile to school choice, this decision is a huge victory for Wisconsin's kids," he said. "It is also a huge win for democratic government, the separation of powers, and public accountability."

Wisconsin Manufacturers & Commerce (WMC) also applauded the decision, saying the court had upheld the rule of law by ensuring that state agencies operate within the authority granted by the Legislature.

"WMC submitted a brief calling on the Supreme Court to take this case because no agency should have the ability to expand its authority without consent and oversight of the Legislature and governor," said WMC senior vice president of government relations Scott Manley. "The REINS Act ensures agencies are operating within their authority and that there are proper checks and balances between our branches of government. WMC applauds the Supreme Court for supporting the rule of law and reining in defiant state agencies."

Gov. Tony Evers - whose actions as state superintendent prompted the lawsuit - was not so thrilled.

"This issue was already decided three years ago in Coyne v. Walker," Evers said. "Both conservative and liberal justices agreed then that the constitution prevented the governor from vetoing rules overseeing public schools. The facts didn't change in the last three years and neither did the meaning of the constitution. Only the composition of the court did."

State superintendent Carolyn Stanford Taylor remained determined.

"The Wisconsin Supreme Court's decision does not affect the constitutional independence of the office of the State Superintendent," she said. "It is limited to rule making. While I am disappointed, we remain committed to Wisconsin schools and students and will continue our work to ensure each student is college and career ready."

The decision

The court found that requiring gubernatorial approval for rule making was constitutional because, while the DPI has constitutional authority that cannot be subjugated, its ability to make rules was not one of those powers.

"In contrast, when the SPI, through the DPI, promulgates rules, it is exercising legislative power that comes not from the constitution but from the Legislature," wrote chief justice Patience Roggensack for the majority. "Stated otherwise, the legislature delegates part of its constitutional power to legislate to the SPI, DPI, and many other agencies in the form of rule-making power. That the SPI also has the executive constitutional function to supervise public instruction does not transform the SPI's legislatively delegated rule-making power into a constitutional supervisory function."

Therefore, the court determined, it is of no constitutional concern that the governor is given equal or greater legislative authority than the SPI in rule making.

A 2011 law required an agency first to submit a scope statement to the governor for approval, and agencies were prohibited from submitting a scope statement to the Legislative Reference Bureau until the governor issued a written notice of approval.

"In addition, rather than submitting final drafts of proposed rules directly to the Legislature for approval, agencies were required first to submit final drafts of proposed rules to the governor for approval," the decision stated. "The proposed rule could not be submitted to the Legislature for approval unless and until the governor again approved the rule in writing."

In 2016, the court found that those provisions did not apply to the DPI. However, as this decision observed, there was no majority opinion.

"Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case," the decision states.

Then, the decision continued, in 2017, the Wisconsin Legislature passed the REINS Act, which added the requirement that agencies submit scope statements to the Department of Administration (DOA), which would determine whether the agency has authority to promulgate the rule. The REINS Act did not alter the requirement that an agency submit a statement of scope to the governor for approval prior to drafting a proposed rule, and submit a final draft of a rule to the governor for approval before submitting it to the Legislature, the decision last week stated.

Essentially, as the court observed, the petitioners asked the court to overrule itself and to find that the SPI and DPI must comply with the "full suite of requirements" of the law, including the requirement for written gubernatorial approval both before drafting a proposed rule and before submitting a final draft of a proposed rule to the Legislature.

It did so.

The court majority found 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 administration of state government is complex," the decision stated. "For example, '[t]he Wisconsin 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.'"

However, Roggensack wrote, while the breadth of government legislation has resulted in some delegation of legislative power to agencies, such agencies remain subordinate to the Legislature with regard to their rule-making authority.

"Stated otherwise, agencies 'ha[ve] no inherent constitutional authority to make rules, and, furthermore, [their] rule-making powers can be repealed by the legislature,'" the decision stated.

In addition, she wrote, this case does not present issues that should give rise to a dogmatic exposition on the merits, or lack thereof, of administrative agencies.

"Rather, we are asked to determine the extent to which the legislature can change a past delegation of rule-making authority when the SPI's rule-making is affected," she wrote.

Simply put, Roggensack wrote, legislative change and control of rule making are within the constitutional power of the Legislature.

"Because the legislature has the authority to take away an administrative agency's rule-making authority completely, it follows that the Legislature may place limitations and conditions on an agency's exercise of rule-making authority, including establishing the procedures by which agencies may promulgate rules," she wrote. "The Legislature may therefore retract or limit any delegation of rule-making authority, determine the methods by which agencies must promulgate rules, and review rules prior to implementation."

What's more. Roggensack wrote, the dictionary definition of "superintend" at the time of the debates further suggests that the framers viewed the SPI as possessing executive, but not legislative, authority.

"Webster's An American Dictionary of the English Language (new rev. ed. 1847-50) defined 'superintend' as: '[t]o have or exercise the charge or oversight of; to oversee with the power of direction; to take care of with authority; as an officer superintends the building of a ship or construction of a fort,'" she wrote.

Similarly, Roggensack continued, "superintendent" was defined as "one who has the oversight and charge of something with the power of direction."

"The framers of the Wisconsin Constitution understood the SPI's superintending function to be executive, not legislative, in nature," she determined.

As such, the court found, agencies in Wisconsin have no inherent authority to make rules.

"Their rule-making authority comes from the Legislature, and may be limited, conditioned, or taken away by the Legislature," Roggensack wrote.

Constitutional authority

But what about the DPI's constitutional authority?

The court did indeed acknowledge that the Wisconsin constitution vests "supervision of public instruction," which is an executive function, in the SPI.

"However, the SPI's powers and duties are set by the Legislature," the court observed. "The SPI therefore has two different sources for its authority, one which arises from the Wisconsin constitution and the other which is created by legislative delegation. The source for rule making is legislative delegation. Because rule making is not 'supervision of public instruction' within the meaning of Article X, Section 1, it is of no constitutional concern whether the governor is given equal or greater legislative authority than the SPI in rule making."

Indeed, Roggensack wrote, a major flaw in the DPI's argument was the assumption that everything the SPI does arises from a constitutional grant of authority to the SPI.

"In reality, the SPI engages in some activities that arise from legislative enactments," Roggensack wrote. "Rule making is one of those activities."

Stated otherwise, Roggensack continued, the Legislature delegates part of its constitutional power to legislate to the SPI, DPI, and many other agencies in the form of rule-making power.

"That the SPI also has the executive constitutional function to supervise public instruction does not transform the SPI's legislatively delegated rule-making power into a constitutional supervisory function," she determined.

Bradley warns against administrative state

Justice Rebecca Bradley concurred in the opinion but disagreed 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 majority correctly upholds the constitutionality of the Legislature's decision to require gubernatorial approval of administrative rule making," Bradley wrote. "I join the opinion except for those portions espousing the ostensible importance and necessity of the Legislature's delegation of power to the administrative state."

Indeed, Bradley advised, there was an inherent danger in such delegation of power.

"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," she wrote. "Although this case does not involve a challenge to the constitutionality of legislative delegations of power to administrative agencies, I encourage the court to be mindful of the structural separation of powers and the safeguards it employs to preserve the rule of law."

Indeed, Bradley continued, the majority restated discredited principles, disregarding the incompatibility of "the system of bureaucratic rule that took root in the Progressive era and now reaches into virtually every realm of American life," with the constitution's "deliberate calibration of incentives and control between the branches" reflected in the structural separation of powers.

"Underlying the movement toward a burgeoning administrative state was the governing class's sneering contempt for the people who elect its members, along with impatience at any resistance of the people to the views of the enlightened," she wrote.

The reality is, Bradley wrote, the concept of the administrative state is nonexistent in either the United States or Wisconsin constitutions.

"In facilitating the vast expansion of the administrative state, the legislative and executive branches transferred power from the people's elected representatives and elected executives, bestowing it upon unelected and unaccountable bureaucrats, thereby jeopardizing the constitution's safeguards against the tyrannical concentration of power," she wrote.

Rather than placidly accepting the administrative state as a necessary appendage to the government, Bradley wrote, the high court should reconsider its acquiescence to subdelegations of legislative power to administrative agencies within the executive branch when the appropriate case presents the opportunity.

Legislatures, Bradley wrote, sometimes delegate power to bureaucrats as a matter of political expedience.

"Passing legislation sometimes requires political courage," she wrote. "Legislative initiatives may move slowly and some bills never become laws. Consequently, 'Congress often prefers to set a politically uncontroversial goal and leave it to the agencies to figure out the politically controversial means of achieving that goal.' 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."

The objective of the Founders was not an efficiently functioning government, Bradley contended.

"The Founders designed a constitution to safeguard individual rights and liberty," she wrote. "The Wilsonian vision of rule by enlightened bureaucrats diminishes the power of the people, in derogation of the principles on which America was founded."

Rather than extolling the necessity of the administrative behemoth in Wisconsin, Bradley wrote, the court should "glance at the constitution to see what it says about how [governmental] authority must be exercised and by whom."

"Through the Wisconsin constitution, the people conferred exclusive powers on an elected executive, an elected Legislature, and an elected judiciary, respectively," she wrote. "Noticeably absent from the Wisconsin constitution is any apportionment of power to unelected and unaccountable administrators. Because the majority lends unquestioned credence to the extra-constitutional apparatus of the administrative state, I respectfully concur."

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at

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