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In a small but significant victory for the balance of formal power in Wisconsin, Dane County Circuit Court Judge Amy Smith ruled Governor Scott Walker’s Act 21 unconstitutional as applied to the Department of Public Instruction.
Act 21 neutered the legislature and set the groundwork for behind the scenes domination of all state agencies by the Governor and the politically appointed Department of Administration secretary.
This control is wielded through rules that state agencies have to make in order to implement laws. Under Act 21, the Governor approves the scope of proposed rules and also has the power to void or approve of the final rules. In a hearing of the Joint Committee for the Review of Administrative Rules last year, Walker’s own Attorney General, J.B. Van Hollen, had this to say about the new process: “We can pass as many laws as we want, but if we can’t enforce them then they’re meaningless.”
The case against Act 21 was brought by leaders of state and local teachers’ unions against Walker, Secretary of the Department of Administration Mike Huebsch, and State Superintendent of Public Instruction Tony Evers last year. They argued that since the superintendent is an elected constitutional officer of the state, neither the Governor nor the DOA Secretary has the power to determine or influence rules in the Department of Public Instruction.
Superintendent Evers, technically a defendant in the case, filed a brief in support of the plaintiffs’ motion for summary judgment earlier this year.
Judge Smith agreed with the plaintiffs, finding the law “unconstitutional beyond a reasonable doubt.”
“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,” reads the order.
The order continues, “Because Act 21 allows the Governor to bar the Superintendent from proposing rules, or from even beginning the process of rulemaking by submitting a scope statement to the Legislature, Act 21 places the Governor in a position superior to the Superintendent in the supervision of public instruction.”
The court found none of the defendants’ arguments persuasive, including the one that said, “The Superintendent does not have any inherent powers.”
Senator Fred Risser (D-Madison), the longest-serving public official in the country and former member of the Joint Committee for the Review of Administrative Rules, believes the law should be struck down entirely. Calling it “a power grab by the Governor to diminish the significance of the legislature and expand the power of the Governor,” he says the law removes the legislature’s power to implement its own laws.
Risser pointed out that, in order to monitor and vet rules for every state agency, Walker had to create his own internal administrative group called the Office of Regulatory Compliance. “He not only disregards the legislature, he sets up his own department to review rules rather than let the legislature do it.”
When asked if the Democratic Caucus had any plans to bring a suit of its own, Risser said, “I think the legislature should try to correct it. Hopefully we’ll try to correct it.”
Their ability to do so may be contingent upon next week’s elections and whether or not the Senate flips back to a Republican majority.
Walker spokesman Cullen Werwie said, “We’re confident we’ll win upon appeal.”
Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along.