Evers, Republicans and the Fight Over State Government Power

Frederica Freyberg:
In state election news, conservative Wisconsin Supreme Court Justice Rebecca Bradley announced today she will not seek reelection in 2026, saying her work to rebuild the conservative movement is not as a minority member of the court. Conservatives have lost the last two state Supreme Court elections by double digit margins, giving the court a liberal majority until at least 2028.
In other news, on September 1st, new commercial building codes will go into effect, nearly two years after a legislative committee blocked a rule that would have brought Wisconsin building codes into compliance with international standards. The rule update was at the center of a Wisconsin Supreme Court case that did more than just change building codes. “Here & Now” senior political reporter Zac Schultz explains how this case is part of a series of court decisions that have dramatically shifted the balance of power at the Capitol.

Adam Neylon:
Any discussion? Hearing none, clerk will call the roll.

Zac Schultz:
The Joint Committee for the Review of Administrative Rules is probably not well known by most people outside the Capitol.

Adam Neylon:
I’ve been on the committee the entire time I’ve been on the Legislature.

Zac Schultz:
But for Representative Adam Neylon, it’s one of the most important committees because it’s been the place where Republicans can stop what they view as executive overreach by the administration of Governor Tony Evers.

Adam Neylon:
The reason I did is because the real-world impact of administrative rules. People don’t necessarily understand that rules have the same impact as law.

Zac Schultz:
Administrative rules are proposed by state agencies. So when the DNR wants to update the standards on how to clean up a hazardous waste spill, or the Department of Safety and Professional Services wants to update the commercial building codes, they have to go through a series of steps, including scope statements and public hearings, and eventually the proposed rule will end up in front of the Joint Committee for the Review of Administrative Rules.

Arielle Exner:
On behalf of the department, I respectfully request that this committee extend the expiration date for emergency rule 2502 by 60 days.

Zac Schultz:
The committee can request changes, but one of the laws passed during the lame duck session at the end of Governor Scott Walker’s term gave JCRAR the ability to indefinitely block rules. Both new rules and old rules that have already been in effect for years. In 2023, the committee blocked an update to the building codes.

Adam Neylon:
When they proposed the building code, it went, what we believe, far above and beyond legislative intent.

Zac Schultz:
The committee also blocked a proposed rule that would have banned gay conversion therapy.

Adam Neylon:
We’re not here specifically to discuss the merits of any conversion therapy or any other type of therapy.

Zac Schultz:
Governor Evers filed a lawsuit claiming JCRAR’s ability to indefinitely suspend rules was a pocket veto and unconstitutional.

Brian Hagedorn:
This case is as consequential for the operation of government as maybe I’ve seen in my time on the court.

Zac Schultz:
At oral arguments, conservative Justice Brian Hagedorn seemed to acknowledge the decades-old arrangement may not be legal, but so many laws have been passed giving state agencies the power to make new rules with the understanding the Legislature had oversight to make sure they didn’t go too far.

Brian Hagedorn:
That’s not what the Constitution says, but hey, this is how we’ve been operating for a long time, and the Legislature has passed a lot of laws accepting the framework that’s been given.

Zac Schultz:
Maybe it’s not what the Constitution says was the key phrase from Hagedorn. In a split decision, the liberal majority struck down JCRAR’s ability to object and suspend rules.

Tony Evers:
Sanity will reign, that’s what I think. We’ve been dealing with this for all the time I’ve been in office, and that is this committee, mainly the leadership, were able to stop everything dead in their tracks and then it — things just don’t happen.

Zac Schultz:
Governor Tony Evers celebrated the decision, while Republicans like Neylon fear what rules may be coming now that they can’t object.

Adam Neylon:
What we’re seeing now is how much this has expanded executive authority and how much is actually expanded the ability to sidestep the Legislature and potentially have agency heads create a super legislature where they’re able to implement rules with no oversight from the Legislature.

Zac Schultz:
This isn’t the only case in the last term where the Wisconsin Supreme Court has eliminated legislative oversight. In Evers vs Marklein I, the court ruled 6 to 1 the Joint Finance Committee couldn’t hold up purchases by the Knowles Nelson Stewardship Fund. In Kaul vs Legislature, the court ruled 7-0 the attorney general didn’t need JFC approval to settle civil lawsuits.

Janine Geske:
Both at the national level and particularly at Wisconsin, there is a redefining and shifting of what people thought was the balance of power and what the court is saying is now the balance of power.

Zac Schultz:
Former Wisconsin Supreme Court Justice Janine Geske says as the partisan divides grow, the court is being asked to look at the constitutionality of old agreements on how government works.

Janine Geske:
They either have to say there’s a justification for it, not just a gentleman’s agreement or party’s agreement. There has to be a constitutional legal justification, or if not, we’re going to redefine it.

Adam Neylon:
I think there’s been a travesty of justice, honestly, because there has been absolute weakening of legislative oversight.

Zac Schultz:
Neylon may not like it, but Democrats say the case was only filed because of what they call the excessive abuse of authority to shut down rules ranging from the DNR setting safe levels for PFAS contamination, election rules on absentee ballots or the conversion therapy ban.

Adam Neylon:
But I don’t think the headline should be about conversion therapy. I think the headline should be we lost legislative oversight because that’s what really happened.

Zac Schultz:
Geske says she was happy so many of the cases cut across the partisan labels on the bench, with conservatives joining with liberals, at least in part on all these cases.

Janine Geske:
I think that’s healthy. I really was glad to see that because I think a court that is totally predictable is really a court that looks like a legislature.

Zac Schultz:
The decisions by the court are already having an impact. Governor Evers cited the stewardship decision when he recently approved raises for state employees passed in the last budget without sending them to the Joint Committee on Employee Relations, as is required by law. Republicans refused to fund the stewardship fund in the last budget and are working on a new bill to give them some level of oversight. Neylon says they were already drafting legislation in a more narrow fashion, to reduce the need for agencies to draft rules.

Adam Neylon:
You’re already seeing bills be much more prescriptive and not granting rulemaking authority explicitly through legislation.

Janine Geske:
Well, I think that’s what happens on decisions that particularly upend what people have been doing. And I think that what happens is that the branches get more creative.

Zac Schultz:
Neylon says his next bill will attempt to restore some oversight for JCRAR in a way both sides can agree on.

Adam Neylon:
I think there needs to be some sort of bipartisan agreement, some sort of working together to make sure that we put checks and balances back into our system.

Zac Schultz:
Reporting from Madison, I’m Zac Schultz for “Here & Now.”